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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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7y 


7    f) 


PKINCIPLES 


LAW  OF  PERSONAL  PROPERTY, 


INTENDED   FOU 


THE  USE  OF  STUDENTS  IN  CONVEYANCING; 
By  JOSHUA  WILLIAMS,  Esq., 

OF    LINCOLN'S    INN,    ONE   OF     HER    MAJESTY'S    COUNSEL. 


AMERICAN  EDITORS, 

BENJAMIN   GERHARD   AND    SAMUEL   WETHERILL. 


FROM   TUE 

SEVENTH  LONDON  EDITION. 


WITH 

ADDITIONAL     NOTES    AND     REFERENCES 

BY 

SAMUEL    WETHERILL. 


PHILADELPHIA: 

T.    &    J.    W.    JOHNSON    &    CO, 

LAW  BOOKSELLERS  AND  PUBLISHERS, 

No.     535     CHESTNUT     STREET. 

1872. 


T 


Entered,  according  to  Act  of  Congress,  in  the  year  1S72,  by 

T.  &  J.  W.  JOHNSON  &  CO., 

In  the  Office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 


Entered,  according  to  Act  of  Congress,  in  the  year  ISGG,  by 

T.  &  J.  W.  JOHNSON  &   CO., 

In  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


HENRY     B.    ASHMEAD,     PRINTER, 
1102  &  1104  Sansom  Street. 


^ 


PREFACE 

TO   THE   AMERICAN  EDITION. 


The  object  of  the  present  edition  of  this  work  has  been  to 
accommodate  Mr.  WiUiams's  Treatise  to  the  United  States,  by 
incorporating  in  the  notes  the  American  law ;  so  as  to  make  the 
book  useful  to  the  American  profession,  both  as  an  elementary 
composition  for  the  student,  and  as  a  book  of  reference  for  the 
practitioner.  The  editor,  in  endeavoring  to  accomplish  this 
purpose,  has  not  indulged  in  original  researches,  but  has,  for  the 
most  part,  confined  himself  to  the  path  prescribed  by  the  author. 
In  most  instances  where  a  citation  has  been  made,  the  original 
book  has  been  consulted,  and  when  practicable,  the  opinions  of 
the  Judges  have  been  quoted,  rather  than  the  syllabus  of  the 
reporter  of  their  decisions,  or  any  abstract  of  such  judgments. 
In  citing  the  statutes  of  the  United  States,  or  of  the  States,  the 
Digests  have  been  referred  to,  rather  than  the  Statutes  at  Large 
— the  former  having  been  found  more  accessible  than  the  latter ; 
in  some  instances,  where  neither  the  more  recent  statutes  of 
the  States,  nor  Digests  of  them,  were  within  reach,  the  decisions 
of  the  courts  pertinent  to  the  subject  have  been  referred  to. 

The  notes  on  the  subject  of  bankruptcy  were  prepared  by 


IV  PREFACE. 

Joseph  Mason,  Esq.,  Register  in  Bankruptcy  in  the  Eastern 
District  of  Pennsylvania,  and  the  editor  hereby  desires  to 
express  his  most  grateful  acknowledgment  for  the  A^ery  valuable 
assistance  thus  rendered.  The  references  in  the  notes  on  this 
subject  are  principally  to  the  Bankruptcy  Register. 

If  it  be  true,  as  the  author  modestly  tells  his  readers  in  the 
preface  to  the  first  edition  of  his  work,  that  no  text-book  of  the 
law  can  be  completely  accurate,  how  very  much  less  must  be 
the  approach  to  perfection  by  annotators. 

With  this  brief  introduction,  the  work  is  submitted  to  the 
profession ;  should  it  prove  useful,  the  object  had  in  view  will 
have  been  attained. 

131  South  Fiftu  Street,  Philadelphia, 
May  6,  lS-2. 


PREFACE 

TO   THE   FIRST   EDITION. 


The  following  pages  are  intended  as  supplementary  to  the 
author's  "Principles  of  the  Law  of  Real  Property."  At  the 
time  when  that  work  was  written,  the  plan  of  the  present 
treatise  was  not  matured,  and  a  chapter  "  On  Personal  Property 
and  its  Alienation"  was  inserted  in  that  work.  The  contents  of 
that  chapter  will  be  found  interspersed  in  parts  of  the  present 
volume ; '  and  should  a  second  edition  of  the  "  Principles  of  the 
Law  of  Ileal  Property"  be  called  for,  it  is  the  author's  intention 
to  omit  that  chapter  of  his  former  work,  and  to  supply  its  place 
by  some  further  remarks  on  such  elementary  parts  of  the  law 
of  real  property  as  may  appear  to  have  been  but  slightly 
touched  upon  before.  The  very  favorable  reception  which  the 
author's  work  on  the  law  of  real  property  has  met  with  from 
the  profession  has  encouraged  him  to  undertake,  in  the  present 
work,  a  task,  he  believes,  hitherto  unattempted :  for  it  js  sin- 
gular that,  notwithstanding  the  rapid  growth  and  nov»^  enormous 
value  of  personal  property  in  this  country,  no  treatise  has  yet 
appeared  having  for  its  object  the  introduction  of  the  student  in 
conveyancing  to  that  large  and  increasing  portion  of  his  study 


VI  PREFACE. 

and  practice  ^vl^ich  comprises  the  law  relating  to  such  property. 
As  to  real  property,  he  may  take  his  choice  amongst  three  or 
four  publications,  all  having  the  same  object  of  facilitating  his 
studies ;  but  the  law  of  personal  property,  though  sufficiently 
treated  of  in  all  that  relates  to  it  as  purely  mercantile,  has  not 
yet  had  any  elementary  treatise  on  its  principles,  so  far  as  they 
affect  the  practice  of  conveyancing.  The  present  work  is  an 
attempt  to  supply  this  deficiency,  and,  in  conjunction  with  the 
author's  "  Principles  of  the  Law  of  Real  Property,"  to  afford 
the  student  a  brief  and  simple  introduction  to  the  whole  system 
of  modern  conveyancing.  The  novelty  of  the  attempt  has, 
however,  increased  the  difficulty  of  the  task.  The  author  has 
endeavored  proportionably  to  increase  his  diligence  and  care. 
He  can,  however,  scarcely  hope  to  have  escaped  all  errors.  And 
here  he  would  caution  the  student  against  too  implicit  a  reliance 
on  the  dicta  of  text-books.  Elementary  books  cannot,  from 
their  nature,  be  completely  accurate.  As  helpers  to  more  per- 
fect knowledge,  they  may  be  most  valuable.  But  it  would  be 
as  great  a  mistake  for  a  student  to  remain  satisfied  with  his 
knowledge  of  a  text-book,  as  for  an  author  to  compress  into  an 
elementary  work  all  that  could  possibly  be  said  on  the  subject. 

7,  New  Square,  Lincoln's  Inn, 
23d  May,  1848. 


ADVERTISEMENT 

TO    THE    SEVENTH    EDITION. 


In  this  Edition  the  alterations  which  have  taken  place  in  the 
Law  since  the  publication  of  the  last  Edition  have  been  incor- 
porated in  the  Text.  The  chapters  on  Bankruptcy  and  part  of 
the  chapter  on  Debts  have  been  re-written. 


3,  Stone  Buildings,  Lincoln's  Inn, 
Dec.  1869. 


TABLE   OF   CONTENTS. 


INTRODUCTORY  CHAPTER, 

FAQR 

OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY    .     .    1 


PART   I. 
OF  CHOSES  IN  POSSESSION      .        .        .        .        .     '    .      9 

CHAP.  I. 

OF   CHATTELS   WHICH   DESCEND   TO   THE   HEIR  ....         9 

CHAP.  II. 
OF   TROVER,    BAILMENT   AND   LIEN 23 

CHAP.  III. 

OF   THE   ALIENATION   OF   CHOSES   IN   POSSESSION      .  .  .  .34 

CHAP.  IV. 
OF  SHIPS 55 


PAUT    II. 
OF  CHOSES  IN  ACTION 63" 

CHAP.  I. 
OF  ACTIONS   EX   DELICTO 63 

CHAP.  II. 
OF   CONTRACTS .  .70 


X  TABLE    OF   CONTENTS. 

CHAP.  III. 

PAOB 

OF    DEBTS .90 

CHAP.  IV. 
OF    BANKRUPTCY   OF   TRADERS 132 

CHAP.  V. 

OF    BANKRUPTCY    OF    NON-TRADERS 166 

CHAP.  VI. 
OF   INSURANCE 175 

CHAP.  VII. 
OF   ARBITRATION  .  .  '. 183 


PART  III. 
OF  INCORPOREAL  PERSONAL  PROPERTY   .    .    .198 

CHAP.  I. 

OF    PERSONAL   ANNUITIES,    STOCKS    AND    SHARES       ....    198 

CHAP.  II. 
OF   PATENTS   AND    COPYRIGHTS 235 


PART  IV. 
OF  PERSONAL  ESTATE  GENERALLY   .    .    .    .259 

CHAP.  I. 
OF    SETTLEMENTS   OF    PERSONAL    PROPERTY 259 

CHAP.  II. 
OF   JOINT    OWNERSHIP   AND    JOINT    LIABILITY  ....    802 

CHAP.  III. 
OF   A   WILL  .  321 


TABLE    OF    CONTENTS.  '  XI 

CHAP.  IV. 

PACE 

OF   INTESTACY 354 

CHAP.   V. 

OF   THE   MUTUAL   RIGHTS    OF    HUSBAND    AND    WIFE  .  .  .    369 


PART  y. 
OF  TITLE .395 


Appendix  (A.)  .        .        . 413 

Appendix  (B.) 418 

Index 431 


INDEX  OF  CASES  CITED  IN  ENGLISH  EDITION. 


Abbot  V.  Blofield 
Abbott  V.  Rogers    . 
Abergavenny,  Earl  of,  Morgan  v 
Abingdon,  Lord,  Clarke  v 
Acaster,  Rogers  v. 
Accidental  Death  Insurance  Compa- 
ny, Shilling  V. 
Ackerman,  Ex  parte 
Acton  V.  Acton 

M'Neillie  v. 

V.  White 

V.  Woodgate 
Adam  v.  Statham 

Wilkinson  v. 
Adams,  Malkiu  v. 

V.  Paynter 
Adcock,  Ross  v. 

Walter  v. 
Wood  V. 
Addenbrooke,  Foley  v 
Addison  v.  Round 
Adney,  Wennall  v. 
Aflalo,  Grove  v. 
Agar  V.  Lisle 
Aitchesou  v.  Cargey 
Cargey  v. 
Aldous  IK  Cornwell    . 
Alexander  v.  Alexander 

Dover  v.   . 
Alford,  Sunbolf  v. 
Alger  V.  Parrott 
Allatt  V.  Carr 
Allen,  Brown  v. 

Testing  v.    . 

Hobby  V. 

V.  Smith 
AUeyn  v.  Alleyn 
AUwood  I'.  Heywood 
Alsager  v.  Spalding 
Amandale,  Brown  v. 
Ambergate,  &c.,  Ry.  Co.  v.  Norcliffe 
Amcotts,  Phelp  v. 
American    Leather-Cloth    Company 
Limited,  Leather-Cloth  Company 
Limited  v.      .         .         .         .      256 
Ames  D   Parkinson 


PAGE 

376 
215 
20 
108 
381 


176 
313 
345 
315 
386 
299 
192 
349,  350 
133 
291 

69 
127 
192 
304 

25 

76 

43 

24 
192 
191 

88 
273 
350 

29 
267 

35 
344 
268 
382 

29 
346 

12 
122 
238 
212 
296 


257 
201 


Amicable  Assurance  Society  v 

land    .        ,         .         .         . 
Amies  v  Skillern 
Amis,  Witt  v. 
Amyot,  Brown  v. 
Anchor  Reversionary  Company 

ited,  Marriott  v. 
Anderson  v.  Coxeter 

Currie  v.    . 

V.  Martindale 

Petty  y.      . 

Price  V. 
Andrew  v.  Andrew    . 
Andrews  v.  Diggs 

Kempe  v.    . 

V.  Partington 

Windle  v.  . 
Angerstein,  Tidswell  v. 
Angler  v.  Stannard  . 
Annandale,  Brown  v. 
Annesley,  Macleod  v. 
Anon.,  1  Atk.  262      '      . 

1  Salk.  71       . 

2  Ventr.  218 
Anstruther,  Ouseley  v. 
Antrobus,  Cunningham  v. 

V.  Smith    . 
Appleby,  Pickering  v.    . 
Arbouin,  Pritchard  v. 
Archer,  Eyre  v. 

V.  Gardiner 
V.  Kelly     . 
V.  Marsh 
Armistead,  De  Begnis  v. 
Armory  v.  Delamirie 
Armstrong,  Tullett  v.     . 
Arnold,  Rawsthorn  v. 
Ashburner,  Fletcher  v. 
V.  M'Guire 
Warden  v.   . 
Ashby  V.  Ashby 
Lloyd  V. 
Vere  v.    . 
Ashford,  Davies  v. 
Ashley  v.  Ashley 
Ashton  V.  Lord  Langdale 
Askew,  Carey  v. 


Bol- 


Lim- 


176 
303 
327 
264 

60 
193 

41 
304 
383 
263 
262 

98 
305 
280 

86 
177 
293 
238 
283 
155 
190 

51 
201 
378 

36 
204 
349 
126 
377 
296 

91 

89 
25,  26 
385,  386 
194 
287 
344 
264 
379 
318 
318 
287 
176 
348 
323 


INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


Askew,  Newton  r. 
Aspinall  v.  Pickfoid 
Aston,  Harvej-  v.    . 
Atchcson,  Scarpellini  v.    . 
Atherton,  Lackington  v. 
Atkinson  r.  Bell 

Clapman  v.     . 

V.  Denby     . 
Atkyns  v.  Kinnier 
Attenborough,  Morley  v.  . 
Att.-Gen.  r.  Boiiwens     . 

V.  Davies   . 

V.  Davison 

Drake  i'.    . 

Glubb  V. 

V.  Graves 

V.  Hertford,  Marquis 

V.  Hope 

V.  Malkin 

March  v.    . 

V.  Meyrick 

V.  Tyndall 
Attwater  v.  Attwater 
Attwood  V.  Munnings 
Aubert  v.  Maze 
Aubin  V.  Daly    . 
Auldjo,  Wallace  v. 
Avery  v.  Langford 

Scott  V. 
Axtell,  Young  v. 
Ayton  V.  Aj'ton 


B. 


Badcock,  Saddlers'  Company 
Badger,  In  re 

V.  Shaw 
Bagley  v.  Mollard 
Bagueley  v.  Hawley 
Bagwell  V.  Dry 
Law  V. 
Bailey  v.  Edwards 

V.  Macaulay 
Baily,  Snellgrove  v. 
Bain  v.  Lescher 
Bainbridge,  Hedley  v 
Bainbrige  v.  Blair 
Baine,  Willing  v.    . 
Bainton  v.  Ward 
Baker  v.  Bayldon  . 

V.  Bradley 

Heslop  V. 

V.  Henderson 

Leonard  v.  . 

Lyon  V.    . 

Mosley  v. 
Balch  V.  Symes 
Baldey  v.  Parker    . 
Baldry,  Norman  v. 
Baldwin,  Ex  parte  Foss,  Re 


of 


PAGE 

298 

30 

370 

.     376 

44 

40 

12G,  128 

.      122 

71,  72,  91 

.     399 

336 

.     349 

191 

.     337 

348 

.     348 

342 

336 

267 

348 

347 

349 

345 

398 

89 

199 

378 

91 

184 

315 

351 


.      179 

192 

50 

350 

.     399 

351,  352 

.     299 

116 

320 

327 

351 

319 

292 

303 

269 

387 

368 

54 

31 

169 

'292 

232 

31 

41 

341 

255 


PAGE 

Baldwin,  Lloyd  v. 

.     288 

Balfour  r.  Ernest    . 

320 

V.  Welland    . 

.     288 

Balguv,  Broadhurst  v.    . 
Ball,  Caldwell  v. 

293 
.       62 

Gambart  v.     . 

251 

Bamfield  v.  Tupper    . 

.       82 

Bamford,  Brown  v. 

386 

Bank  of  England,  Churchill  v. 

.     207 

Franklin  v. 

208 

V.  Lunn 

206,  208 

V.  Moffat    . 

208 

V.  Parsons 

.     208 

Richardson  v 

.     .          213 

Banks,  Bell  v.    . 

.     116 

V.  Gibson  . 

258 

Banner  v.  Lowe 

.     265 

Bannister,  Eicholtz  v.    . 

399 

Haley  v.    . 
Moodie  v. 

.     279 

402 

Banwen  Iron  Co.  v.  Barnett 

.     216 

Barber  ii.  Barber    . 

351 

Buckley  v. 
V.  Fox 

.     305 
107 

Knight  V. 

204,  230 

Mills  V.        .         .         . 

84 

Barchard,  Savill  v.    . 

.       30 

Barclay,  Ex  parte 

14 

Hidsou  V. 

.     128 

V.  Wainewright 

263 

Bardell,  Rex  v. 

.     186 

Barden,  In  the  Goods  of 

328 

Barham,  Moor  v. 

.     362 

Power  V. 

399 

Baring  v.  Day    . 
Barker  v.  Lea 

.       30 

378 

Price  V. 

.     311 

Re       ...         . 

180 

Stamper  v.     . 
V.  Stead 

.     388 
320 

Barlow,  Errat  v. 

.     279 

Barnard,  Earl  of  Glengall  v. 

347 

Lyde  v. 
Barnes,  Skey  v.       .         .         . 
Barnett,  Brandao  v.   . 

84,  409 

277 

30 

Banwen  Iron  Co.  v. 

.    •      216 

Van  V. 

.     287 

Barrack  v.  M'Culloch     . 

298 

Barrett  v.  I'arry 
Barrie,  Glover  v.    . 

.     189 
191 

Barrow,  Lysons  v. 

.     334 

Barrows,  Hall  v.     . 

256,  257 

Barr's  Trusts,  In  re    . 

.     408 

Barry,  Haly  v.         .         .         . 
V.  Nesham 

207 
.     316 

Bartholomew,  Drybutter  v.    . 
Bartlett  v.  Bartlett     . 

210 
.     408 

Ex  parte    . 
V.  Gillard      . 

389 
.     346 

Barton  v.  Barton     . 

369 

Beckton  v. 

.     347 

INDEX   OF   CASES    CITED    IN    ENGLISH    EDITION 


PAGE 

Barton  v.  Briscoe  .         .         .         . 

386 

V.  Crofts 

.       43 

Barton's  Will,  In  re        .         .         • 

374 

Bartrop,  Eyre  v.          .         .         . 

.     116 

Bassett,  Way  v.       .         .         .         • 

312 

Bastard,  Nicliolls  v.  . 

.       27 

Bate,  Hunt  v.          .         .         .         . 

73 

Bateman,  Brown  v.    .         .         . 

35 

V.  Davis .         .         .         . 

285 

V.  Ross 

.     388 

Bates  V.  Cooke        .         .         .         . 

183 

Foster  v.            ... 

.     357 

Turby  v 

40 

Bates  &  Redgate,  Re 

.     238 

Bath,  Ex  parte        .         .         .         . 

133 

Bayldon,  Baker  v.      .         .         . 

.     378 

Baylis,  Chowne  v.           .         .         . 

47,  397 

Beale  v.  Beale    .... 

.     274 

Bear  v.  Bromley      .         .         .         . 

214 

Beard,  Boulton  v.       .         .         . 

.     293 

V.  Egerton  . 

239,  241 

Beaufort,  Duke  of,  Wellesley  v. 

.     388 

Beaumont  v.  Oliveira 

349 

V.  Reeve    . 

.        76 

Bevan  v.  Earl  of  Oxford 

206 

Beek,  Newton  v.         .         .         . 

.        11 

Ward  V. 

57 

Beckett,  Donaldson  v. 

.     246 

Beckford,  Greening  v.    . 

409 

Beckham  v.  Drake 

312,  316 

Beckton  v.  Barton 

347 

Beddoes,  Brampton  v. 

91 

Beer  v.  Beer  .... 

264 

Belding  v.  Read 

.       34 

Bell,  Atkinson  v.    . 

40 

V.  Banks    .... 

.      116 

V.  Bidgood      . 

98 

Bowlby  V.           ... 

.     230 

Hamilton  v.    . 

54 

Hobson  V.           ... 

.     410 

Meux  V.           <         .         . 

408 

Sanderson  v.      . 

.       29 

Bellaris,  Brown  v. 

298 

Bellasis  r.  Ermine 

.     370 

Belton  V.  Hodges    . 

134 

Benedict,  Montague  v. 

.     383 

Seaton  v. 

382 

Benham  v.  Broadhurst 

.     127 

Bennett  v.  Burton  . 

170 

Ex  parte 

.     344 

Page  V.      .         .         . 

180 

Benning,  Sweet  v.      .         .         . 

.     247 

Bensley  v.  Bignold 

89 

Benson  v.  Maude 

,     341 

Bentall  v.  Burn 

42 

Bentley  v.  Mackay     . 

.     298 

Benyon  v.  Maddison 

266 

Berchtoldt,  Countess  of,  Earl  of  Lo 

ns- 

dale  V.          .... 

266 

Bern,  Hardy  v 

.      109 

Bernard,  Coggs  v.  . 

27 

PAGE 

Berndtson  v.  Strang  . 

45 

Bernes,  Stanley  i'.  . 

325 

Berney,  West  v. 

.     274 

Berriman  v.  Peacock 

18 

Berrington  v.  Evans  . 

102,  297 

Best,  PauU  v.           ... 

155 

Betts  V.  Burch    . 

.       71 

V.  Kimpton    . 

376 

V.  Menzies 

.     237 

Bevan,  Ex  parte      . 

313 

V.  Walters 

29 

Bewit,  Whitfield  v. 

18 

Bidden  v.  Leeder 

.       90 

Biddlecomb  v.  Bond 

166 

Bidgood,  Bell  v. 

98 

Bignold,  Bensley  v. 

89 

Bill  V.  Cureton 

.     298 

Billingsley,  Lady  Shore  v. 

303 

Bingham,  Pardo  v.     . 

.     402 

Binks,  Harland  v. 

299 

Binnington  v.  Wallis 

74,  90 

Binns,  Swallow  v. 

277 

Bitch,  Watson  v. 

.     401 

Bird  V.  Boulter 

43 

V.  Brown    . 

44 

V.  Gammon     . 

82 

Morley  v.   . 

.      303,  351 

V.  Ralph 

68 

Bishop  V.  Elliott 

15 

Bishopp  V.  Colebrook     . 

381 

Bissett  V.  Burgess 

69 

Bittleston,  Quartermaine  v.    , 

54 

Black,  Willis  v. 

.     296 

Blackburn,  Hobson  v.     . 

349 

Blackburne,  Strode  v. 

12 

Blacklow  V.  Laws  . 

384 

Blades  v.  Higgs 

22 

Blair,  Bainbrigge  v. 

292 

V.  Bromley 

.     318 

V.  Nugent 

401 

Blake,  Dundas  v. 

.     406 

Ex  parte 

296 

V.  Izard 

35 

V.  White      . 

116 

Blakelock,  Stevenson  v.     . 

.       30 

Bland,  Ex  parte 

134 

Blantern,  Collins  v.   . 

.       88 

Bligh  V.  Brent 

305 

Blight,  Loveacres  d.  Mudge  v. 

.     307 

Blisset  V.  Cranwell 

307 

Blofield,  Abbot  v. 

.     376 

Bloomer  v.  Darkes 

128 

Blount  V.  Burrow 

.     328 

Bloxham  v.  Sanders 

.     43,  46 

V.  Elsee 

.     241 

Blunden  v.  Desart 

31 

Blurton,  Kirk  v. 

.     318 

Blythe  v.  Granville 

296 

Boaler  v.  Mayor 

.     116 

Bodley  v.  Reynolds 

46 

Bogue  V.  Houlston     . 

.     251 

XV 


XVI 


INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


PAHE 

PAGE 

5?oldero,  (iodsall  v.         .         .         . 

177 

Bramah  v.  Roberts 

319 

Liishiriijton  v. 

.       18 

Brampton  v.  Beddoes 

91 

I?ollaiul,  Amicable  Assurance  Soc. 

K     17G 

Bramwell  v.  Eglinton      . 

172 

V.  Disney 

176 

Brandao  v.  Barnett    .... 

30 

Bollett,  Rurnby  v.      .         .         . 

.    ;{f>9 

Brandcr  ?'.  Brander 

2C3 

Bond,  Hidillecorab  v.      . 

IGG 

Brandon  v.  Robinson 

385 

Smith  1'.            ... 

.      108 

Brathwait,  Larapleigh  v. 

73 

Booker,  Van  Casteel  v.  . 

45 

Brearey,  lloundell  v.           ... 

297 

Booscy  V.  Jofferys 

.     24G 

Brcmbridge,  Evans  v.     . 

311 

Jctferys  i- 

248 

Brent,  Bligh  v.        .         .             .         . 

305 

Booth  V.  Booth 

.      2113 

Brereton,  Drosier  v.        .         .         . 

282 

Kirkman  v.            ... 

315 

Brett  V.  Greenwcll     .... 

377 

Martindale  v.  . 

.       48 

Briant,  Philpot  v.            .         .      '    . 

117 

Whale  i> 

339 

Brice  i'.  Stokes           .... 

293 

Boothby,  Morley  v.     . 

.        79 

Bridge  v.  Bridge     .... 

298 

Borman.  Scarborough  v.         .          3 

85,  38G 

V.  Cage            .... 

90 

Boss  V.  Godsall 

.     286 

V.  Yates       .... 

303 

Botfield,  Bradburne  v.    . 

304 

Bridges,  Etty  v.          .... 

409 

Boucher,  Prescott  v. 

.      377 

V.  Hawkesworth 

26 

Boughton,  Knight  v.       . 

2G4 

Brierlcj'  v.  Kendall    .... 

49 

Lord  St.  John  v. 

.     401 

Briggs  V.  Chamberlain  . 

382 

Boulter,  Bird  v 

43 

Bright,  Jones  i'.          .... 

400 

Boulton  V.  Beard 

.     €93 

Bright's  Trusts       .... 

407 

V.  Bull        .... 

239 

Briscoe,  Barton  v.      . 

386 

Bourne,  Dowbiggin  v. 

.      114 

Hanchett  v.       .         .         . 

381 

V.  Fosbrooke 

26,  3G 

Brise,  Matthews  v.      . 

282 

Hawkeu  v.    . 

.      319 

Bristead  v.  Wilkins 

207 

Boutts  V.  Ellis         .... 

327 

Bristol    and    Exeter    Railway    Com- 

Bouwens, Attorney-General  v.  . 

.     336 

pany,  Coombs  V.          .         .         . 

42 

Bowden,  Jones  v.             ... 

400 

Bristowe  v.  Ward       .... 

273 

Bower,  Nicholson  v.  . 

41 

Britain,  Braithwaite  v.  . 

312 

V.  Marris     .... 

121 

British    Empire    Shipping  Company 

Mexborough  v. 

.     183 

V.  Somes 

29 

Boweren,  Grymes  v.        . 

14 

Broadbent,  Mason  v.           ... 

403 

Bowes,  Countess  of  Strathmore  v. 

.     383 

Broadhurst  v.  Balguy     . 

293 

Bowker,  Wilmshurst  v. 

45 

Benham  t'. 

127 

Bowlby  V.  Bell  .... 

.     230 

Brockelbank,  Stocker  v. 

316 

Bowles's  Case          .... 

19 

Bromage  v.  Lloyd       .... 

85 

Bowley,  Reynolds  v. 

.     314 

Bromhead,  Wilkins  v.    . 

40 

Bowman,  Mullen  v.         .         .         . 

352 

Bromley,  Bear  v 

214 

Bowser  v.  Cox    .... 

.      116 

Blair  v.    .        '. 

318 

Bowsher,  Davis  v.           ... 

30 

Bromley  v.  Brunton  .... 

327 

Bowyer  v.  Woodman 

.     403 

Brooke  v.  Enderby 

315 

Boyd  V.  Boyd           .... 

361 

V.  Haynes       .... 

330 

V.  Shorrock 

50 

V.  Mitchell          .         .  25,  188 

189 

Boydell  v.  M'Michael      . 

16 

Brooks  V.  Keith         .... 

296 

Boyle  V.  Bishop  of  Peterborough 

.     272 

Broom  w.  Broom     .... 

305 

Ex  parte        .... 

155 

Broughton  v.  Broughton    .         : 

292 

Bracebridge  v.  Cook 

.     374 

Brown  v.  Allen       .... 

344 

Bradburne  v.  Botfield     . 

304 

V.  Amyot        .... 

264 

Bradley,  Baker  v.       .         .         , 

.     386 

V.  Amandale 

238 

V.  Copley 

25,  49 

V.  Bamford     .... 

386 

Hampshire  v. 

.     293 

V.  Bateman 

35 

Perkins  v.         ,         .         . 

47 

V.  Bellaris       .... 

298 

Wren  v.        .         .         . 

.     387 

Bird  V 

44 

Bradsey  v.  Clyston 

189 

Collins'  Co.  V.         .         . 

256 

Bradshaw,  Custance  v. 

.     305 

V.  Edgington 

400 

Yeoman  v.    . 

110 

Jennings  v.     . 

76 

Bradyl,  Burridge  v. 

.     346 

V.  Lee          .... 

115 

Braithwaite  v.  Britain    . 

312 

Metropolitan  Counties,  &c.,  So 

- 

V.  Skinner 

6 

ciety  I' 

14 

INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


XVU 


Brown  v.  Pocock 

Richardson  v. 

V.  Yawser 

Wakefield  v. 

V.  Weatherby 
Browne  ".  Cavendish 

V.  Hammond  . 

Pfleger  v.    . 

V.  Savage 
Brownlow,  Nixon  v. 
Brownrigg,  Bryson  v. 
Brownsmith,  Wilson  v. 
Brumridgc  v.  Brumridg' 
Bruning,  Smith  v.  . 
Brunton,    Bromley  v. 
Bryan    v.  Clay 

Hensworth  v. 
Bryans  v.  Nix 
Bryant,  Hollis  v. 

Laythoarp  v. 
Bryce,  Cannan  v. 
Bryson  v.  Brownrigg 
Buchanan,  Fleming  v. 
Buck,  Sutton  v. 
Buckhurst's  Case 
Buckingham,  Earl  of,  v. 
Buckland  v.  Johnson 
Buckley  v.  Barber  . 
V.  Gross 
Earl  of  Stafford 
Ex  parte 
Buckley's  Trust      . 
Bull,  Boulton  V. 

V.  Faulkner  . 
Bunn  V.  Markham 
Burch,  Betts  v. 
Burdiss,  Carr  v. 
Burford,    Dix  v.     . 
Burge,  Heyhoe  v. 
Burgess,  Bissett  v. 

Ransome  v. 
Tappenden 
Williams  v. 
Burgh  art,  Lane  v. 
Burk  V.  Jones    . 
Burley,  Gilly  v. 
Burn,  Bentall  v. 

i\  Biirn 
Burnby  v.  Bollett 
Burnell,  Gale  v. 
Burnet  v.   Mann 
Burridge  v.  Bradyl 
Burrough  v.  Moss 
Burrow,   Blount  v. 
Burrowes,  Stuart  v.    . 
Burton,  Bennett  v. 
Goode  V. 
V.  Hughes 
Bury,  Pctrie  v.  ,      «  . 
Bush,  Hart  v. 

V.  Shipmaw 


ry 


PAGE 

385 
399 
197 
304 
312 
299 
352 
120,  122 
408 
212 
327 
345 
294 
370 
327 

69 
188 

37 
167 

81 

89,  92 

327 

269 

27 

10 
372 

46 
305 

26 
199 
318 
294 
239 

31 
327 

71 

38 
293 
316 

69 
280 
123 
101 

79 
405 
263 

42 
319 
399 
34,  49 
362 
346 
375 
328 
332 
170 

11 

28 
302 

42 
122 


PAGE 

Bushell  V.  Wheeler    ...    41 

Busk  V.  Davis 40 

Pickering  v.  .         .         .         398 

Butcher  v.  Butcher    .         .         .         .296 

I'.  Jackson         .         .         .         275 

Butler,  Falkner  v 273 

Butterfield,  In  re  .  .  .  .  315 
Byers,  Wilkinson  v.  .  .  .  .  120 
Byng  V.  Lord  Strafford  .  .  .  266 
Byrne,  Ward  v.  .  .  .  .91 
Byron  v.   Byron     ....  78 

Bywater,  Wrightston  v.    .         .         .     191 


C. 


Cadogan  v.  Earl  of  Essex  .  .  286 
Cage,  Bridge  v.       .         .         .         .  90 

Caldwell  v.  Ball  ....  62 
Calvert  v.  London  Dock  Company  116 
Camm,  Goulder  v.  .  .  .  386 
Campbell  v.  Campbell  .  .  .292 
V.  Home  ....  275 
Macarthur  v.  .  ,  .  194 
Campion  v.  Cotton         ...  74 

Candish,  Wilkinson  v.  .  .  .  133 
Cannan  v.  Bryce  ....  89,  92 
Cannings  v.  Flower  ....  279 
Careless,  Rachfield  v.  .  .  .  352 
Carew,  Clive  v.  .  .  .  .  386 
Carew  v.  Askew     .         ...         .         323 

Carey,  Collins  v 292 

Cargie  v.  Aitcheson        .         .         .         191 

Aitcheson  v.  .         .         .         .     192 

Carlisle,  Earl  of,  Lechmere  v.         .         287 

Carlon,  Clack  v 292 

Carpenter  v.  Smith         .         .         .         237 

Tebbsi; 201 

Carr,  Allatt  v.        .         .         .         .  35 

V.  Burdiss         ....       38 

Carrick,  Freshney  v.      .         .         .  49 

Carrington,  Ex  parte         .         .         .     133 

Carruthers,  Parkin  v.    .         .         .         314 

Carstairs,  Ex  parte    .         .         .         .116 

Maltby  y.        .         .         .         116 

Carter  v.  Crick  .         .         .         .399 

V.  Taggart  .         .         264,  379 

V.  Whalley      .         .         .         .315 

Cartright  v.  Cartright    ...         387 

V.  Vawdry  .  .  .     350 

Carver,  Waugh  v.   .        .         .  316,  319 

Case,  Hartley  v.         ....       87 

South  Carolina  Bank  i'.         .         319 

Cassell,  In  re 196 

V.  Stiff  ....  254 
Castle  V.  Sworder  ....  42 
Castrique,  Hderton  v.  .  .  .  127 
Catchpole,  Cook  v.  .  .  .  .  184 
Caulfield  v.  Maguire  .  .  .  114 
Cautley,  Foster  v.  .  .  .  .  272 
Cave  V.   Cave         .         .  .16 


XVI 11 


INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


Cave,  Farquharson  v. 

V.  Roberts     . 
Cavendish,  Brown   v. 
Chadwick  v.  Doleman    . 
Chaloncr,  Ilorsley  i^. 
Chamberlain,   Briggs  v. 

V.  Williamson 
Chambers,  Willct  v. 
Chamjiernown  v.  Scott 
Champneys.  Sturgis  v.    . 
Chandler,  Kensington  v.    . 
Channon  v.  Patch 
Chanter  v.  Hopkins   . 
Chaplin,    Ex   parte 

V.  Rogers    . 
Chapman,  Howse  v. 
May  V. 
V.  Slilvain 
Charlesworth,   Malcolm  v. 
Chase,  Goodman  v. 
Cherry  v.   Hemming 
Cheslyn  r.  Dalby    . 
Chesterfield  and  Midland  S 
Colliery   Co.,  Limited,  v.  I 
Cheync,  Eccles  v. 
Chichester,  Coventry  v. 

Smith  ('. 
ChidcU  V.  Galsworthy    . 
Child  V.   Morley 
Chiswell,  Gray  v.  . 
Chitty,  Hulme  v. 
Chollett  V.  Hoffman 
Cholmeley  v.  Paxton 
Chowne  v.  Baylis   . 
Churchill  v.  Bank  of  England 

V.    Small 
Churclnvard  v.  Studdy 
Churchton  v.  Douglas    . 
City  of  London  Steam  Pack 

pany,   Fenton   v. 
Clack  V.  Carlon 
Clancy  v.  Piggott   . 
Clapman  v.  Atkinson 
Clare,   Ridgway  v. 
Claridge,  HoUis  v.     . 
Clarke  v.  Abington,  Lord 
Groves  v. 
Hopkins    v. 
V.  Parker 
Rawlinson  v. 
In  re       . 
V.  Seton 
V.  Shee  . 
Smith  V.     . 
V.  Williams 
Clarkson,  Wild  v. 
Clay,  Bryan  v.    . 
Clayton  v.  Kynaston 
Cleave  v.  Jones 
Clegg  V.  Clegg 

V.  Rowland 


Ikstone 
[awkins 


47, 


257, 
;t  Com- 


126, 


PAGE 

327 
3G4 
209 
273 
342 
382 

67 
318 

31 
377 
298 

18 
399 
282 

3G 
347 

87 
214 
379 

79 

80 

82 

127 

352 

347 

31 

35 

203 

312 

388 

245 

19 

397 

207 

12 

21 

258 


308, 


62 
292 

79 
128 
313 

31 
108 
378 
172 
370 
316 
318 
108 
395 

85 
126 
108 

69 
311 

82 
296 
342 


Clift  V.  Schwabe 
Climic  t'.  Wood 
Clive,  Carew  v. 
Close  V.  Close 

V.  Waterhouse 
Clough  V.  French   . 

V.  Lambert     . 
Clulow,  In  re 
Clyston,  Bradson  v.   . 
Cobb,  Rishton  v.    . 
Cock,  Lashbrook  v. 
Cockburn,  Daubney  v. 
Ex  parte    . 
V.  Peel  . 
Cocksedge  v.  Cocksedg 
Coggs  V.  Bernard   . 
Coker,  Hitchcock  v.   . 
Colbeck,  In  re 
Cole,  Kearsley  v. 

Kerrison  v.    . 
Colebrook,  Bishopp  v. 
Colegrave  v.  Dias  Santos 
Coles  V.  Turner 
Collectors  of  Customs,  Rex  v 
CoUett,  Meryon  v. 

V.  Morrison 
Collins  V.  Blantern     . 
V.  Carey 
V.  Collins 
Drew  V. 
Hobby  V. 
V.  Lamport 
Lowndes  v.    . 
V.  Martin    . 
Company  v.  Brown 
CoUinson,  Holderness  v. 
Colvin,  Wilton  v. 
Combe,  Ward  v. 
Compton,  Peter  v. 

Right  d.  Compton 
Condiiitt  V.  Soane 
Congrevc,  Douglas  v.     . 

V.  Evetts 
Conquest,  Marsh  i\ 
Cook,  Bracebridge  v. 
V.  Catchpole 
V.  Cook    . 
V.  Wright 
Cooke,  Bates  v. 

V.  Fuller     . 
V.  Whorwood 
Cookson  V.  Cookson 

V.  Reay 
Coombs  V.  Bristol  and  Exeter 
Company 
V.  Coombs 
Coope  V.  Cresswell 
V.  Twj'man 
Cooper,  Davidson  f. 
Edwards  v. 
ILaymes  v. 


Railway 


INDEX   OF   CASES    CITED   IN    ENGLISH    EDITION. 


XIX 


Cooper  V.  Johnson 

Loveridge  v. 

V.  Slieppard 

V.  Willomatt 

V.  Woolfit 
Cope  V.  Rowlands 
Copeland,  Morton  v. 
Copis  V.  Middleton     . 
Copley,  Bradley  v. 
Coppin,  Dillon  v.        .         .     ' 
Corbet,  Ewer  v.      .         .         . 
Cordell,  Elliott  v.       . 
Corles,  Dipple  v.    . 
Cornforth  v.  Smithard 
Cornthwaite,  Frith  v. 
Cornwallis,  Lassells  v. 
Cornwell,  Aldous  v. 
Corporation  of  Liverpool,  Scott  v 
Corrance  v.  Corrance     . 
Cotton,  Campion  v.   . 
Coventry  v.  Chichester 
V.  Coventry 
Lord,  Lygon  v. 
Cowell  V.  Simpson 
Cowley,  Earl,  v.  Wellesley     . 
Cox,  Bowser  v.  ... 

Coxeter,  Anderson  v. 
Craddock,  Lake  v.      . 
Cradock  v.  Piper    . 
Craig,  Downes  v.        .         .         . 
Crallan  v.  Oulton  . 
Cramer  v.  Moore 
Cranefeld,  Freake  v. 
Cranley  v.  Hillary 
Cranmer's  Case 
Cranwell,  Blisset  v.   . 
Craythorne  v.  Swinburne 
Creed  v.  Perry   .... 
Cresswell,  Coope  v. 

Green  v.   . 
Creswick  v.  AVoodhead  . 
Crick,  Carter  v.  ... 

Cripps  V.  Hartnell 
Cristall,  Ferguson  v. 
Crofton  V.  Pool 
Crofts,  Barton  v.        .         .         . 

Elves  V.       .         .         . 
Crompe,  Martin  v       .         .         . 
Cross,  Re        ...         . 
Crosskey,  European,  &c.  Shipping 
Crossley  v.  Dobson 
Crow  V.  Robinson 
Croydon  Canal  Co.,  Hodges  v. 
Cruger  v.  Dunlop 
Cruise  v.  Hunter    . 
Cruttwell  V.  Lye 
Cubitt,  Stanfeld  v. 
Cubley,  Pigot  v.         .         .         . 
Cullingworth  v.  Lloyd   . 
CuUwick  V.  Swindell 
Cumber  v.  Wane    . 


PAGE 

188 
407,409 
46 
28 
17 
89 
248 
.     114 
25,  49 
36,  75 
339 
.     379 
73 
.       77 
299 
.     269 
88 
.      184 
391 
74 
347 
291,  296 
281 
30,32 
18 
116 
193 
305 
292 
68 
405 
.     296 
405,  406 
.      122 
346 
307 
116 
,     381 
402 
79 
330 
,     399 
79 
25,  28 
158 
43 
91 
.     305 
205 
Co.«.  196 
309 
21)7 
403 
,      128 
388 
,     258 
50 
27,  28 
122 
14 
120 


Cunningham  v.  Antrobus 
Cunynghame  i'.  Thurlow 
Cureton,  Bill  v. 
Curling  v.  Flight  . 
Currey,  Wilmer  v. 
Currie  v.  Anderson 
Cusack  V.  Robinson  . 
Custance  v.  Bradshaw 
Cutbush  V.  Cutbush 
Cutfield,  Wardroper  v. 
Cuthbert  v.  Dobbin  . 
Cutler,  In  re  . 
Cutten  V.  Sanger 

D. 


PA.as 
378 
275 
298 
410 
309 
41 
41 
305 
315 
264 
100 
377 
298 


Dabbs,  Ford  v.  ....     167 

Dalby,  Cheslyn  v 82 

V.  India  and  London  Life  Assur- 
ance Company  .         .         177 

Dale,  Drayton  v 158 

Dalton,  In  re  ....         371 

Daly,  Aubiuw 199 

Dalzell,  Lynch  v.  .         .         .         .         179 

Danby,  Trimmer  V 264 

Daniel,  Cirwan  «.  ....  299 
Daniell  v.  Dudley  .  .  .  .267 
Darby  v.  Darby  ....  305 
Darell,  Hales  v.  .         •         .         .     346 

Sturgis  V 404 

Darkes,  Bloomer  v 128 

Darlington  District  Joint  Stock  Bank- 
ing Company,  Ex  parte  .         .         .319 
Dartmouth,  Lord,  Howe  v.     .         .         201 

Darton,  Moore  v 327 

Daubeny  v.  Cockburn    .         .         .         275 
Davenport,  Elliott  v.  .         .         .     266,  351 

Ex  parte       .         .         .  37 

Davids,  Jones  ......     144 

Davidson  v.  Cooper         ...  88 

Ex  parte     ....     248 

Davis  V.  Ashford    ....         287 

Attorney-General  v.         .         .     349 
V.  Humphreys       .         .         .         116 
V.  Penton  .         .         .         .71 

V.  Stainbank         .         .         .         116 

V.  Vernon         .         .         .10,  12,  31 

Davis,  Bateman  v.  ...         285 

V.  Bowsher      ....       30 

Busk  t; ^0 

V.  Earl  of  Dysart    ...       12 

Godfrey  v 350 

V.  Mason  ....       91 

Shepley  v 40 

Davison,  Attorney-General  v.   .         .     191 

Daw  V.  Eley 240 

Dawes  v.  Peck  .         .         .         .  42,  45 

Dawson  v.  Kearton         ...  76 

Pearson  u.     .         .         .  37,  42 

Day,  Baring  v.         .         .         .         .  30 

Hulkes  V. 207 


XX 


INDEX    OF    CASES   CITED   IN    ENGLISH    EDITION. 


Day,  "Wallis  v.    . 

Deakle,  Pain  v. 

Dean  c.  Hogg     . 

Dearie  v.  Hall 

De  Begnis  v.  Armistead 

De  Oastro,  Willis  v. 

Dedire,  Frecmoult  v. 

Decks  V.  Strutt 

Deering  v,  Eail  of  W'inchelse 

De  la  Crouee,  Hambridge  v. 

De  la  Garde  v.  Lempriere  . 

Delamiric,  Armory  v.    . 

De  Mattos,  De  Polhonier  v. 

De  Mautort  v.  Saunders 

Denby,  Atkinson  v.    . 

Denny,  Flory  v. 

De  Pass,  Lyons  v. 

De  Pothonier  v.  De  Mattos 

De  Proven,  Duplex  v. 

Desanges,  Thoiuas  v. 

Desart,  Blunden  v.     . 

Desbrisay,  Fearon  v. 

Detastet,  Ex  parte     . 

Devaux  v.  Steinkeller     . 

Devaynes  v.  Noble     .     ■    . 

Devereux   v.    Kilkenny,   &c 
Company    . 

Dewdney,  Ex  parte    . 

Dewhirst  v.  Jones 

V.  Kershaw 

D'Eyncourt  v.  Gregory  . 

Dias  Santos,  Colegrave  v. 

Dickie,  Gibson  v.   . 

Dickinson  v.  Kitchen 
Orr  V.    . 
V.  Teesdale 
V.  Valpy 

Diggs,  Andrews  v.     . 

Dillon  V.  Coppin    . 

Dimsdale  v.  Robertson 

Dipple  V.  Corles 

Disney,  Holland  v.     . 

Dix  V.  Burford 

Dixie,  Wood  v.  . 

Dixon,  Fisher  v.     . 
V.  Yates 

Dobbin,  Cuthbert  v. 

Dobree,  Ruddell  v.     . 

Dobson,  Cossley  v. 

Dodd,  Lewen  v. 

Doe  d.  Esdaile  v.  Mitchell 
d.  Morrison  i;.  Glover 
d.  Stace  v.  Wheeler 

Doleman,  Chadwick  v. 

Dolland,  Kensington  v. 

Dominy,  Thompson  v. 

Donaldson  v.  Beckett     . 

V.  Donaldson    . 

Doncaster  v.  Doncaster 

Donellan  v.  Reid 

Doran  v.  Wiltshire 


PAGE 

19 
189 
G2 
407,  409 
89 
311 
.  297 
6 
.  115 
319 
.  378 
25,  26 
.  117 
312 
,  122 
39 
.  39G 
117 
.  102 
150 
.   31 
275 
.  313 
84 
121,312 
Railway 

212 

405 

12G 

127 

15 

14 

74 

60 

61 

406 

319 


36,  75 
189 

73 
176 
293 

52 

16 
44,45 
100 
327 
309 
307 
150 
232 
330 
273 
384 

62 
246 
298 
265 

80 
288 


37 


Dorrien,  Lucas  v. 
Dorrill,  Routlcdge  v. 
Douglass,  Churton  v. 

V.  Congreve   . 
V.  Russell  . 
Dover  v.  Alexander 
Dowbiggen  v.  Bourne 
Dowling,  Wade  v. 
Downes  v.  Craig 

V.  Jennings 
Downman,  Motley  v. 
Downs,  England  v. 
Dowson,  Pickering  v. 
Drake  v.  Attorney-General 

Beckham  v. 
Drayton  v.  Dale 
Drew  V.  Collins 
Driver  v.  Mawdeslcy 

V.  Scott . 
Drosier  v.  Brereton 
Drummond,  Evans  v. 

M'Leod  V.    . 
V.  Parish 
Drury,  Earl  of  Buckingham 

V.  Scott  . 
Dry,  Bagwell  v. 
Drybutter  v.  Bartholomew 
Dubost,  Ex  parte    . 

Morell  V. 
Dudley,  Daniel  v.   . 

V.  Warde 
Dufaur,  Ex  parte    . 
Duff  w.  East  India  Company 

Gordon  v. 
Duffield  V.  Elwes 
Duffy's  trust,  In  re 
Duke,  Samuel  v. 

Sheppard  v. 
Duncan  v.  Topham    . 
Dundas  v.  Blake     . 

V,  Dutens 
Dungannon,  Lord,  Ker  v. 
Dunkley  v.  Dunkley 
Dunlop,  Cruger  v. 

V.  Higgins    . 
Dunnicliff  v.  Mallet 
Duplex  V.  De  Proven 
Durant,  James  v.    . 

V.  Prestwood 
Durnford  v.  Lane   . 
Dutens,  Dundas  v. 
Dutton  V.  Morrison 
Dyke  v.  Walford 
Dykes,  Tolson  v.     . 
Dysart,  Earl  of,  Davis  v.    . 


E. 


Eads  V.  Williams 
Eardley  v.  Owen 


PAOE 

.       37 

274,276 

257, 258 

296 

62 
350 
114 
191 

68 
383 
257 
383 
399 
337 
312,  316 
158 
128 
299 
293 
282 
315 
339 
323 
372 
296 
351,  352 
210 

36 

99 
267 

16 
133 
318 
344 
327 
379 
396 
401 

81 
406 
206 
261 
378 
128 

'81 
307 
102 
296 
362 
371 
206 
123 
355 
172 

12 


191 
296 


INDEX   OF    CASES   CITED    IN    ENGLISH    EDITION. 


XXI 


Earle,  Heinekey  v.     .         . 

Mare  v.         .         .         . 
East  India  Company,  Duff  v. 

Murray  v. 
Venables 
Easton  v.  London  . 
Eastwood  V.  Kenyon  . 
Eccles  V.  Cheyne  . 
Ede,  Mitchell  v. 
Edelstonw.  Vick     . 
Edgeberry  v.  Stephens 
Edginton,  Brown  v. 
Edmonds,  Goodtitle  d.  Richards  v 

V.  Low  . 
Edmund  v.  Waugh     . 
Edsun,  Smarte  v.    . 
Edwards,  Bailey  v.     . 

V.  Cooper 

V.  Freeman 

V.  Hall    . 

V.  Harben  . 

V.  Janes 

V.  Jones      .         .        36,  298 

V.  Countess  of  Warwick 
Egerton,  Beard  v.       .         .         .      239 
Eglinton,  Bramwell  v.    . 
Eicholtz  V.  Bannister 
Eley,  Daw  v.  . 
Elibank,  Lady  v.  Montolieu 

Lord,  Murray  v. 
Elliot  V.  Merriman 
Elliott,  Bishop  v.    . 
V.  Cordell 
V.  Davenport 
V.  Royal  Exchange  Assurance 
Company 
Ellis,  Boutts  V. 


37 


201 


Niramo 
Ellison  V.  Ellison    .         .         .         .36,  298 

V.  Elwin 

Lyddon  v.  . 
Elsee,  Bloaxam  v. 
Elton,  Ex  parte 
Elves  V.  Crofts  . 
Elvy  V.  Norwood     . 
Elwes,  Dufiield  v. 

Forrest  v.    . 

V.  Maw   . 
Elwin,  Ellison  v.    . 
Euderby,  Brooke  v.    . 
England  v.  Downes 

King  V. 
Equitable  Reversionary  Interest  So 

ciety  V.  Fuller     .... 
Ermine,  Bellasis  v.     . 
Ernest,  Balfour  v.  . 
Errat  v.  Barlow 
Erskine's  Trust 
Espinasse,  Petre  v.    . 
Essex,  Earl  of,  Cadogan  v 
Ettricke  v.  Ettricke    . 


PAGE 

45 
122 
318 
404 
330 

12 

73,  76 

352 

37 
257 
239 
400 
266 
346 
403 
310 
116 
298 
358 
348 

48 

83 
328 
265 
241 
172 
399 
240 
377 
378 
339 

15 

379 

266,  351 


184 
327 

75 


379 
274 
241 
313 

91 
403 
327 
293 

15 

371,  379 

315 

383 

33 

285 
370 
320 
279 
377 
298 
286 
307 


Etty  V.  Bridges 

European  Co.  v.  Royal  Mail  Co 

European,  <fec.  Shipping  Co.  v.  ( 

key  .         .         . 

Evans,  Berrington  v. 

V.  Bremridge 

V.  Drummond 

Field  V.  . 

Legg  V. 

V.  Prosser 

V.  Scott 

Wilkinson  v 

V.  Williams 

Williams  v. 
Everard  v.  Poppleton 
Everett,  Eyre  v. 
Evetts,  Congreve  v. 
Ewer  V.  Corbett 
Eyre  v.  Archer 
V.  Bartrop 
V.  Everett 
Holland  v. 
Eyres  v.  Faulkland 
Eyton,  Pott  v.    . 


F. 

Falkner  v.  Butler 
Farebrother  v.  Simmons 
Farina  v.  Home 
Farmer  v.  Smith     . 

Sparrow  v.    . 
Farnell,  Kiddill  v. 
Farquhar,  M'Queen  v. 
Farquharson  v.  Cave 
Farr,  Meredith  v. 
Farrant  i'.  Thompson     . 
Farren,  Kemble  v. 
Faulder,  Harper  v. 
Faulklaud,  Eyres  v.  . 
Faulkner,  Bull  v     . 
Fearnhead,  Knatchbull  v. 
Fearon  v.  Desbrisay 
Fenton   v.    City   of    London 
Packet  Company 
Trueman  v.       ; 
Fenwick  v.  Greenvvell 
Ferguson  v.  Cristall 

Sainter  v.     . 
Fergusson  v.  Norman     . 
Fernie,  Hodgkinsoh  v. 

Young  V.    . 
Fesenmeyer,  Johnson  v. 
Festing  v.  Allen     .     '    . 
Featherstone  v.  Hutchinson 
Fettiplace  v.  Gorges 
Fidgeon,  Laing  v. 
Field  V.  Evans 

Northey  v. 

Yea  V.    . 


10 


25, 


PAGE 

409 
60 

196 

2,  297 

311 

315 

386 

32,  49 

370 

278 

42 

102 

14 

101 

116 

35 

339 

126 

116 

116 

81 

261 

316 


43 

.   42 

232 

.  232 

398 

.  275 

327 

.  350 

16 

;    .   71 

12 

.  261 

31 

;  341 

275 

Steam 

:   62 

76 

.  294 

;  25,  28 

:    .  71 

89 

.  192 

237 

.  134 

268 

.   90 

38i 

.  400 

386 

.   45 

10 

XXll 


INDEX    OF   CASES    CITED    IN    ENGLISH    EDITION. 


Fielder,  Prondley  v. 
Fielding  v.  Lee 
Fiuney,  Fodcn  r. 
Firniin  v.  Pulliam  . 
Fisher  v.  Dixon 

r.  Pimbley  . 
Fitch  I".  Sutton 
Fitzer  v.  Fitzer 
Fleming  v.  Buchanan 

V.  Self       . 
Fletcher  v.  Ashburner 
V.  Fletcher 
Lcchmere  v. 
Young  V. 
Flight,  Curling  v. 
Fliutoff,  Horner  v. 
Flory  V.  Denny 
Flower,  Cannings  v. 
Foden  v.  Finney 
Foley  V.  Addcnbrooke    . 

Paget  V.  . 
Foljambe,  Ogilvie  v. 

V.  Willoughby  . 
Fooks,  Pride  v. 
Foote,  Woods  v. 
Ford  r.  Dabbs 
V.  Jones     . 
V.  Peering 
Fordham  v.  Wallis     . 
Fordwich  (Mayor  of),  Tomli 
Fores  v.  Johnes 
Forrest  v.  Ehves     . 
Fosbrooke,  Bourne  v. 
Foss,  Ex  parte.  Re  Baldwin 
Foster  v.  Bates  . 

V.  Cautley  . 
V.  Pearson 
V.  Weston    . 
Foudrin  v.  Gowdey    . 
Fowler  v.  Fowler  . 

Marshall  v.    . 
Wisliart  v. 
Fox,  Barber  v.    . 
Freakley  v. 
V.  Smith     . 
Webb  V. 
Francis  v.  Grover 

V.  Hawkesley     . 
Viner  v. 
Franklin  v.  Bank  of  England 
V.  Hosier     . 
V.  Neate  . 
Franks,  Ex  parte 
Fraser,  In  the  Goods  of 
Mather  v.      '  . 
V.  Palmer     . 
V.  Thompson 
Freake  v.  Cranefeldt 
Freakley  v.  Fox 
Frecker,  Norton  v. 
Freeland  v.  Pearson 


PAGE 

384 

54 

377 

293 

16 

192 

120 

388 

269 

232 

287 

388 

82 

134 

410 

71 

39 

279 

377 

304 

403 

81 

281 

201,  293 

127 

167 

196 

12 

83 

191 

91 

201,  293 

26,  36 

255 

357 

272 

395 

114 

346 

346 

378 

123 

107 

330 

192 

158 

403 

77 

351 

208 

29 

27 

133 

359 

14,  50 

292 

74 

405,  406 

330 

405 

352 


PAGE 

Freeman,  Ex  parte          .         .         .  314 

Edwards  v.       .         .         .         .  358 

Freemoult  v.  Dedire        ...  297 

French,  Clough  v 105 

Ex  parte       ....  283 

Frere,  Thomason  v 306 

Freshney  v.  Carrick        ...  49 

Friar,  Grey  v 199 

Frith,  Cornthwaite  v.     .         .         .  299 

Frost,  Williams  v 236 

Frowd,  Moore  v 292 

Fry,  Ex  parte 314 

Fryat,  Reid  v 189 

Fuller,  Cooke  v 290 

Equitable    Reversionary   In- 
terest Society  v.      .         .  285 
Furniss  v.  Leicester  ....  399 


G. 


Gaffee,  In  re           ....  386 
Gale  V.  Burnell           ...          34,  49 

Griffiths  V 352 

V.  Walsh           ....  86 

Galsworthy,  Chidell  v.  .         ,         .  35 

V.  Strutt         .         .         .71 

Gambart  v.  Ball     ....  251 

V.  Sumner           .         .         .  251 

Gammon,  Bird  v 82 

Gardiner,  Archer  v.            ...  377 

Gardner  v.  Marshall        ...  377 

Gardom,  Ex  parte      ....  318 

Garland,  Ex  parte           .         .         .  315 

Garner  v.  Hannyington      ...  12 

Garnet,  Pierson  v.           ...  274 

Garrard  v.  Lord  Lauderdale      .         .  299 

Garrod  v.  Simpson          .         .         .  126 

Gaskell  v.  King          ....  90 

Gaters  v.  Madeley           .         .         .  376 

Gatty,  Phillipson  v.            ...  282 

Gaylor,  Howell  v.            ...  267 

Gaze,  Love  v 353 

Gee  v.  Gurney         ....  275 

Geldard,  Robinson  v.          .         .         .  349 

Gent  V.  Harris         ....  378 

Gery,  Humfrey  v 403 

Gibbeson,  Greenham  v.           .         .  285 
Gibbon,  Kempe  v.      .         .         .         .  402 
Gibbons  v.  Northeastern  Metropoli- 
tan Asylum  District   ...  81 
Gibbs,  Lindsay  v.       .         .         .         .62 

Gibson,  Banks  v 258 

V.  Dickie       .         .         .         .71 

Gresty  v.            ...  127 
Gifford,  Ex  parte        .         .         .      116,311 

Nugent  V.           ...  339 

Gilbert  v.  Lewis         .         •        .         .  384 

Richardson  v.     .         .         .  247 

Giles,  Walker  v 233 

Gilkes  V.  Leonino           ...  81 


INDEX    OF   CASES    CITED    IN    ENGLISH    EDITION. 


XXlll 


Gill,  In  the  Goods  of 

V.  Shcllej- 
Gillard,  Bartlett  v.     . 
Gilly  V.  Barley 
Giraud,  Hilton  v. 
Girdlestone,  Watts  v. 
Glaysher,  Ex  parte     . 
Gleaves  v.  Paine    . 
Glendinning,  Ex  parte 
Glengall,  Earl  of,  v.  Barnard 
Gloucester,  Corporation  of,  Try 
Glover  v.  Barrie 

Doe  d.  Morrison  v. 
Morrison  v. 
Glubb  V.  Attorney-General 
Glynn,  Morris  v      .         .         . 

V.  Thorpe 
Goddard,  Pedley  v. 

V.  Snow 
Godden,  Ex  parte 
Godfrey  v.  Davis 

V.  Turnbull 
Godsall  V.  Boldero     . 

Boss  V.        .         .         . 
Goldsmid  v.  Goldsmid 
Gomley  v.  Wood    . 
GiOmme,  Hill  v. 
Goode  V.  Burton     . 
Goodman  v.  Chase     . 

V.  Harvey 
Goodtitle  d.  Richards  v.  Edmon 
Gordon  v.  Duff 

V.  Gordon 
V.  Harper 
Norcott  V. 
Gorges,  Fettiplace  v. 
Gould,  Weldon  v. 
Goulder  v.  Camm 
Gowdey,  Fondrin  v. 
Grace  v.  Smith 

Webb  V.  , 

Grafftey  v.  Humpage 
Graham  w.  Graham     . 

V.  Londonderry 
Grane,  White  v. 
Grant  v.  Grant 

Routledge  v.    . 
Grant  v.  Vaughan 
Grantham  v.  Hawley 
Granville,  Blyth  v. 
Graves,  Attorney-General  v 

V.  Weld      . 
Gray  v.  Chiswell 
Hind  V. 
Irving  V.    . 
V.  Limerick,  Earl  of 
V.  Mathias 
Great  Northern  Ry.  Co 


Great  Western  Ry.  Co. 
Greaves  v.  Hepke 


Harwood  v, 
Pym  V. 
Rouch  V.  . 


PAOK 

.  356 
350 
.  34G 
263 
.  348 
201,  293 
.  186 
377 
.  122 
347 
V.    .  349 
191 
.  232 
232 
,  348 
348 
.  105 
193 
.  383 
127,  128 
.  350 
315 
.  177 
286 
.  274 
292 
.  341 
11 
.   79 
395 
.  266 
344 
.  350 
.  25,  28 
.  346 
384- 
30 
386 
.  346 
316 
.  370 
267,  296 
346,  391 
374 
281 
108 
81 
395 
34 
296 
348 
17 
312 
91 
128 
273 
89 
237 
65 
150 
37 


ds 


PAGE 

Greaves,  Shuttleworth  v.        .         .         344 

Steward  r.    .         .         .         .     214 

Greedy  v.  Lavender        .         .         .         381 

Green  v.  Cresswell     .         .         .         .79 

Hardey  v 296 

In  re 341 

Mathers  v 307 

Price  V 71 

V.  Price         .         .         -         .     90,  91 
Greenberg  v.  Ward    .         .  .     127 

Greenham  v.  Gibbeson  .  .         285 

Greenhill,  Rex  v.        .         .         ...     389 

Greening  v.  Beckford     .         .         .         409 
Green's  Patent  .         .         .         .245 

Greenwell,  Brett  v.         .         .         .        377 

Fenwick  v.       .         .         .     294 

V.  Greenwell        .         .         279 
Greenwood's  Case      .         .         .         .217 

Greese,  Richardson  v,    .         .         .         346 

Gresham,  Wiles  v 285 

Gresty  v.  Gibson    ....         127 

Gregory,  D'Eyncourt  v.      ,         .         .15 

Heckscher  v.   .         .         .         203 

Grey  v.  Friar 109 

V.  Stuart         ....         296 
GrifiBn,  Bishop  of  Hereford  v.   .         .     247 
Lee  V.         .         .         .         •  42 

Thompsons.  .         .         •     280 

Griffith  v.  Ricketts  .         .  287,  299 

Griffiths  v.  Gale  .         .         .         .352 

Grimes  v.  Harrison         .         .         .         233 

Gross,  Buckley  v 26 

Grote,  Limbard  v.  ...         274 

Grove  v.  Aflalo  ....       43 

Grover,  Francis  v.  .         .         .         403 

Whittingstall  v.  .  .  313 

Groves  v.  Clarke    ....         378 
V.  Perkins       .         .         .         .378 
Grymes  v.  Boweren        ...  14 

Stratton  v 370 

Guedalla,  Montefiore  v  .  .  347 
Gunn,  Pawle  v.  .  .  .  73,  204 
Gurney,  Gee  v.  .  .  .  .  275 
Guthrie,  Hewison  v.  ...  33 
Leslies.  ....  62 

Gutteridge,  Simmons  v.     .         .         .     330 
Guy,  Styles  v 293 


H. 


H.  V.  W 387 

Hacon,  Wills  v 126 

Haddan,  Mason  v.      .         .         .         .  184 

Hadfield,  Rushforth  v.    .         .         .  30 

Haigh,  Howdon  v.      .         .         .         .  122 

Hale  w.  Saloon  Omnibus  Company  .  52 
Hales  V.  Darell           .         .         .         .346 

Halesham  v.  Young        .         .         .  318 

Haley  v.  Bannister     ....  279 

Halford  v.  Kymer  ....  177 


XXIV 


INDEX    OF   CASES    CITED    IN    ENGLISH    EDITION. 


Hall  V.  Barrows 

Dearie  v. 

Edwards  v. 

V.  Hardy 

V.  Heath 

V.  Hewer 

V.  Hugonin 

V.  Lawrence    . 

Moss  V. 

V.  Norfolk  Estuary  Company 

V.  Palmer  . 

Pinkney  v. 

V.  Potter     . 

Reynolds  v.     . 

Stanton  v. 
Hallewell,  Hawker  v. 
Halliday,  Streatfield  v 
Halthin,  Steinmetz  v. 
Haley  v.  Barry   . 
Hambidge  v.  De  La  Crouee 
Hames  v.  Hames 
Hamilton  v.  Bell    . 

V.  Kirwan 
Hammond,  Browne  v 

V.  Hammond 
Hamper,  Ex  parte 
Hampshire  v.  Bradley 
Hanbury  v.  Kirkland 
Hanchett  v.  Briscoe    . 
Hancock  v.  Heywood 
Handley,  Keenan  v.   . 
Hant'orth,  Howell  v. 
Hannyngton,  Garner  v 
Hanrott,  Wombwell  v. 
Hanson  v.  Keating     . 

V.  Meyer    . 
Harben,  Edwards  v.     . 
Harcoiirt  v.  Ramsbottom 
Hardey  v.  Green 
Hardy  v.  Bern 

Hall  V.    . 
Hare  v.  Horton 

Hyat  V.      . 
Harewood,  Lord,  Jlilner  v 
Harford,  Neilson  v.    . 
Harland  v.  Binks    . 
Harlcy  v.  Harlej'^ 
Harmcr  v.  Westmacott 
Harms  v.  Parsons 
Harnett  v.  Macdougall 
Harper  v.  Faulder 
Gordon  v. 
Harrington  v.  Price   . 
Harris,  Ex  parte     . 
Gent  V. 
V.  Lloyd     . 
V.  Wall 
Harrison,  Grimes  v. 
V.  Jackson 
V.  Paynter 
Harrobin,  Pole  v. 


PAGE 

25G,  258 

407,  409 

.     348 

196 

.      117 

274 

.     381 

19G 

.      116 

211 

89 

318 

.     370 

54 

.     379 

93,  170 

■.     310 

378 

.     207 

319 

.     267 

54 

.     275 

352 

.     296 

316 

.     293 

293 

.     381 

306 

.       74 

265 

12 

272,  273 

.     377 

39 

48 

191 

296 

109 

196 

14 

318 

371 

241 

299 

381 

255 

91 

386 

12 

25,  28 

10 

313 

378 

168,  350 

77 

233 

319 

118 

89 


New 


and 


Harrop  v.  Howard 
Hart  V.  Bush 

I'.  Stephens    . 
Hartford  v.  Jones 
Hartley  v.  Case 
Hartnell,  Cripps  v.     . 
Harvey  v.  Aston     . 

Goodman  v.  . 
Harwood  v.  Great  Northern  Railway 

Company    . 
Haslam,  Nickels  v.     . 
Hassell  v.  Hawkins 
Hastings,  Lord,  Scott  v. 
Hawken  v.  Bourne 
Hawker  v.  Hallewell. 
Hawkesley,  Francis  v.    . 
Hawkesworth,  Bridges  v 

Wolverhampton 
Waterworks  Co 
Hawkins,   Chesterfield    and    Midi 
Silkstone   Colliery  Company   L 
ited  V.    . 

Hassel  v. 
Hawley,  In  re    . 

Bagueley  v. 
Grantham  v. 
Haworth,  Meyer  v. 
Hay,  Ex  parte    . 

V.  Palmer 
Hayes  v.  Ha^'es  . 

Massy  v. 
Haygarth,  Taylor  v.  . 
Hayley,  Hope  v. 
Haymen,  Stapleton  v. 
Hayraes  v.  Cooper . 
Haynes,  Brooke  v. 
Hayter  v.  Tucker    . 
Hayward,  Williams  v. 
Head,  March  v. 
Headington,  Holloway  v 
Heard  v.  Stamford 
Heath  v.  Hall     . 
V.  Key 
V.  Lewis  . 
Heather,  Richards  v. 
Heaver,  Manser  v. 
Hebb's  Case  . 
Hebdon  v.  West 
Hecht,  Hunt  v. 
Heckscher  v.  Gregory 
Hedley  v.  Bain))ridge 
Heinekey  v.  Earle 
Helleley,  Johnson  v. 
Hellicar,  Powell  v.     . 
Hembrow,  Prior  v. 
Heming,  Cherry  v.     . 

V.  Swinnerton 
Hemsworth  v.  Bryan 
Henderson,  Baker  v. 

Wilkinson  v 
Heneage  v.  Huulokc 


PACE 

386 
42 

376 
30 
87 
79 

370 

395 


237 

241 

346 

207 

319 

93,170 

77 

26 


211 


127 
346 
196 
399 

34 

7.6 
313 
265 
344 
384 
364 

35 

57 

32 
330 
348 
233 
377 

75 
382 
117 
116 
370 
309 
191 

81 
176 

41 
203 
319 

45 
258 
327 
188 

80 
186 
188 

31 
312 
274 


INDEX   OF   CASES    CITED    IN    ENGLISH    EDITION 


32 


Henning,  Whittle  v.  . 

Henshaw,  Williams  v.    . 

Hensloc's  Case  .... 

Hepke,  Greaves  v.  ... 

Hereford,  Bishop  of,  v.  Griffiii  . 

Herlakenden's  Case 

Hertford,  Marquis  of,  Attorney-Gen 

eral  v. 
Hesilrige,  M-Donnell 
Heslop  V.  Baker 
Ex  parte 
Hewer,  Hall  v.  . 
Hewison  v.  Guthrie 
Hewitt  V.  Ka}-e  . 
V.  Price 
»  Webb  V. 

Heyhoe  v.  Burge     . 
Heywood,  Allwood  v. 
Hancock  v 
Hibbert,  Simond  v. 
Hickman,  Wheatcroft  v. 
Hicks,  Lovell  v. 
Hidson  i'.  Barclay 
Higgins,  Dunlop  v. 
V.  Pitt      . 
V.  Sargent 
Seed  V.     . 
Higgs,  Blades  v. 
Hilbert,  Tate  v. 
Hill  V.  Gomme  . 
Johnson  v. 
Rex  V. 
V.  Spencer 
V.  Thompson 
Wartaurton  v. 
Hill's  Patent      . 
Hillary,  Cranley  v. 
Hillman,  Tapfield  v. 
Hills  V.  Hills  . 

V.    Liverpool    U 
Company 
Hilton  V.  Giraud     . 
Hinchcliffe  v.  HinchclifFe 
Hinchiubrook,  Lord, 
Hind  V.  Gray 
Hindley  v.  Westmeath,  Marquis  of 
Hinton  v.  Pinke 
Hirsch  v.  Im  Thurn 
Hiscox,  Willis  v. 
Hitchcock  V.  Coker 
Hitchins    v.   Kilkenny 

Company 
Hitchman  v.  Stewart 
V.  Walton 
Hoadley  v.  M'Laine 
Hoare  v.  Hornby 
V.  Parker 
Hobby  V.  Allen 

V.  Collins     . 
Hobson  V.  Bell  . 

V.  Blackburn 


PAGE 

381 
303 
330 
37 
247 
17,  18 

342 
298 

54 

54 
274 

33 
327 
230 
116 
316 

12 
306 

30 
316 
318 
128 

81 
122 
114 
242 

22 

7,  328 

341 

29 
190 


239,  241 
207 
237 
122 
34 
328 


nited    Gaslisfht 


Shipbrook  v. 


&c.   Railway 


14 


237 
348 
346 
293 

91 
387 
344 
184 
293 

91 

212 
115 
,  16 
40 
296 
261 
382 
382 
410 
349 


Hobson  V.  Thelluson 
Hockley,  Steadman  v.    . 
Hodge,  Walter  v. 
Hodges,  Belton  v.  . 

V.  Croydon  Canal 
Hodgkinson  v.  Fernie     . 
Hodgson  V.  Loy 

Nash  V.    . 
V.  Shaw 
Simonds  v. 
Hodson  V.  Observer  Life 
Society     . 
Wallis  V.  . 
Hoffman,  Chollett  v.  . 
Hogg,  Dean  v. 

V.  Skeen  . 
Holden,  Stokes  v.  . 
Holderness  v.  CoUinson 
V.  Rankin     . 
Holford  V.  Phipps 
Holland  v.  Eyre 

V.  Hughes     . 
Hollier,  Ravenshaw  v.    . 
Hollinshead,  Reid  v. . 
Hollis  V.  Bryant 
Hollis  V.  Claridge 
HoUoway  v.  Headington 
Holmes  v.  Mackrell    . 
V.  Mitchell 
V.  Prescott    . 
V.  Tutton   . 
Holroyd  v.  Marshall  . 
Hoist  V.  Pownal 
Homan,  Owen  v. 
Home,  Campbell  v. 
Homewood,  Leader  v. 
Honner  v.  Morton  . 
Hood,  Wilson  v. 
Hooper  v.  Ramsbottom  . 

V.  Rossiter     . 
Hope,  Attorney-General  v 
V.  Hayiey 
V.  Hope 
Hopkins,  Chanter  v.  . 
V.  Clarke 
V.  Logan 
V.  Prescott 
Tugman  v.  . 
Hopkinson  v.  Lee  . 
Hopper,  Re 
Hornby,  Hoare  v.    . 
Home,  Farina  v. 
Horner  v.  Flintoflf . 
Hornsby  t'.  Miller 
Horsley  v.  Chaloner 
Horton,  Hare  v. 

Richardson  v. 
V.  Sayers 
Wells  V.     . 
Hosier,  Franklin  v.    . 
Hotham  v.  Somerville 


Company 


XXV 

PAGE 

52 

31 

327 

134 

403 

192 

44 

.  83,  121 

114 


Assurance 


XXVI 


INDEX    OF   CASES    CITED    IN    ENGLISH    EDITION. 


PAGE 

Houghton  V.  Houghton 

.     305 

?'.  Matthews  . 

30 

Houlston,  Bogue  v.    . 

.     251 

How,  Jones  y. 

296 

Pidding  v. 

.     257 

Howard,  Harrop  v. 

386 

V.  Rhodes    . 

.     292 

Howarth,  Samuel  v. 

116 

Howden  v.  Haigh 

122 

Howe  V.  Lord  Dartmouth 

201 

V.  Synge  . 

90 

Whittaker  v. 

91 

Howell  V.  Gayler 

.     267 

V   Ilan forth 

265 

V.  M-Ivers 

.     117 

Howes,  Morris  v.    . 

267 

Howse  v.  Chapman    . 

.     347 

Hubbersty  v.  Manchester,  Sh 

jffield, 

&c.  Railway  Company 

211 

Hudson,  Smith  v. 

41,  45 

Hughes,  Burton  v. 

28 

Holland  v.    . 

.     201 

V.  Kelly    . 

403 

V.  Laytou 

.     233 

Oldham  v. 

287 

Rann  v. 

.       72 

Stoveld  V. 

36 

V.  Stubbs 

.     299 

V.  Wynne 

108,  405 

Hughes's  Trusts,  re   . 

.     408 

Hugonin,  Hall  v.    . 

381 

Hulkes  V.  Day    . 

.     207 

Hulme  V.  Chitty     . 

388 

Humble  v.  Mitchell    . 

.      204,  230 

M'lver  V. 

315 

Hume  V.  Richardson 

.     284 

Humfrey  v.  Gery    .         .         , 

403 

Humpage,  Grafftey  v. 

.      267,  296 

Humphrey,  Peer  v. 

396 

Humphreys,  Davies  v. 

.     116 

Hunloke,  Heneage  v. 

274 

Hunt  V.  Bate 

.       73 

V.  Hecht 

41 

Knight  V. 

.     122 

V.  Peacock     . 

406 

Hunter,  Cruise  v. 

.     388 

V.  Nockolds 

403 

Huntley  v.  Russell     . 

69 

Hurst  V.  Jennings 

109 

Parnham  v. 

.     117 

Smith  V.        . 

299 

Husbands,  Ex  parte  . 

.     313 

Hutchings  v.  Smith 

379 

Hutchinson,  Fetherstone  v. 

90 

Hyat  V.  Hare 

318 

Hyde  v.  Price     . 

.      114 

I, 
Idle's  Case      .... 

19 

Idlerton  v.  Castrique 

.     127 

Ilfracombe  Railway  Company,  Pick- 
ering V. 

Im  Thurn,  Hirsch  v. 

India  and    London    Life 
Company,  Dalby  v. 

Inge  ".  Moseley 

Ingham,  Simson  v. 

Ingilby,  Winn  i'. 

Inglebach  v.  Nichols 

Innes,  Penny  v. 

Inns,  Stalworth  v. 

Insole,  Re 

Irish  Land  Co.,  Norris  v. 

Irons  V.  Smallpiece    . 

Irvine,  Rannie  v.    . 

Irving  V.  Gray   . 
Mercer  v. 

Iveson,  Other  v. 

Izard,  Blake  v. 


207 

184 

Assurance 

177 

.       89 

. 

121 

16 

127 

86 

, 

191 

390 

63 

36 

91 

.     128 

, 

72 

.     309 

. 

35 

Jackson,  Butcher  v. 
Harrison  v. 
V.  Jackson 
V.  Nichol 
Pearse  v.     , 
Purdew  v. 
V.  Sinclair 
V.  Thompson 
Thorpe  v.    . 
V.  WooUey 

Jacquet  v.  Jacquet     . 

Jacob,  Worrall  v. 

James  v.  Durant 

James,  Richards  v. 
V.  Thomas 

Jamieson,  In  re 

Janes,  Edwards  v. 

Janson,  Ex  parte    . 

Jarvis,  Smith  v. 

JefFereys  v.  Small 

Jeffery  v.  Jeffery 

JefFereyes,  Watts  v. 

JefiFerys  v.  Boosey 
Boosey  v. 

Jenkins,  Perry  v. 

Richardson  v. 

Jenkyn  v.  Vaughan   . 

Jenkyns  v.  Usborne 

Jennings  v.  Brown     . 
Downes  v. 
Hurst  V. 
Rawlings  v 
V.  Rigby 

Jervis,  Radburn  v. 

Jervoise  v.  Jervoise   . 
V.  Silk       . 

Jessopp  V.  Watson     . 

Johnes,  Fores  v. 


27,5 
319 
275 

45 
233 
380 
403 
168 
312 
83,312 
406 
387 
296 

50 
108 
196 

83 
313,  314 
318 
305 

75 
206 
248 
246 
404 
106 
298 

45 

'76 
383 
109 
200 
102 
199 
374 
280 
362 

91 


INDEX    OF    CASES    CITED    IN   ENGLISH    EDITION. 


XXVll 


PAGE 

Johnson,  Buckland  v. 

46 

Cooper  V. 
V.  Fesenmayer    . 
V.  Helleley 
V.  Hill 

188 

.     134 

^         258 

.       29 

V.  Johnson 

352 

RaTvson  v.  . 

.       43 

V.  Stear  . 

28 

"Worrall  v. 

31 

Jones  V.  Bowden    . 

400 

?'.  Bright 

.     400 

Burke  v.        .         .        . 

405 

Cleave  v. 

.       82 

V.  Davids 

114 

Dewhirst  v. 

.     126 

Edwards  v. 

36,  298,  328 

Ford  V.     .         .         . 

.      196 

Hartford  v.   . 

30 

V.  How 

.     296 

V.  Lock 

36 

Macoubrey  v. 

.     274 

Merryweather  v. 
V.  Morris 

387 
.     126 

Reilly  v.        .         .         . 
Scott  V.    . 

71 
.     406 

Tyler  v.         .         .         . 
V.  "Waite 

188 
.     387 

Waite  V.        .         .         . 

90 

Joyce  V.  Swann 

40 

Judson,  Nicholls  v. 

346 

Jukes,  Kilshaw  v. 

.     316 

Kain,  Shepperd  v.           .         .         . 

399 

Kaye,  Hewitt  v.          .         .         . 

.     327 

Keane,  Mornington  v.     . 

297 

Kearsley,  Morris  v.     . 

.     305 

V.  Cole    . 

311 

Kearton,  Dawson  v.   . 

.       76 

Keating,  Hanson  v. 

377 

Smith  V.      .         ,         . 

.     299 

Keeley,  Winch  v.    . 

117 

Keenan  v.  Handley    . 

.       74 

Keightley  v.  Watson 

304 

Keith,  Brooks  v.         .         .         . 

.     296 

Rees  V.         .         .         . 

378 

Kekewich  v.  Manning 

.     298 

Kelly,  Archer  v.     . 

296 

Hughes  V.         .         .         . 

.     403 

Kemble  v.  Farren 

71 

Kemp,  Philanthropic  Society  v. 

.     349 

Kempe  v.  Andrews 

305 

V.  Gibbon 

.     402 

Kendall,  Brierley  v. 

49 

Kennay,  Rogers  v.      .         .         . 

25 

Kennedy,  Ex  parte 

313 

Molony  v.   . 

.     384 

Kensington  v.  Chandler 

298 

V.  Dolland 

.     384 

Company, 


71 


Kensington,  Ex  parte     . 
Kenyon,  Eastwood  v. 
Ker  V.  Lord  Dungannon 
Kerrison  v.  Cole 
Kershaw,  Dewhirst  v.     . 
Kettlewell,  Meek  v.    . 
Key,  Heath  v. 
Keysell,  Topping  v.    . 
Kiddill  V.  Farnell 
Kidson  ?».  Turner 
Kilkenny,    &c.,    Railway 
DevereuKv.     . 

Hitch 
Killby  V.  Wright 
Kilshaw  v.  Jukes    . 
Kimpton,  Betts  v. 
Kincaid,  In  re 
King  (The)  v.  Sankey 

V.  England  •  . 

Gaskell  v. 

V.  Rendall 
Kingsford  v.  Merry     . 
Kingsley's  Trust,  In  re  . 
Kinnersley  v.  Mussen 
Kinnier,  Atkyns  v. 
Kirby  v.  Potter 
Kirk  V.  Blurton 
Kirkland,  Hanbury  v. 
Kirkman  v.  Booth 

Needhara  v. 
Kirkpatrick  v.  Tattersall 
Kirwan  v.  Daniel 

Hamilton  v. 
Kitchen,  Dickinson  v. 
Knatchbull  v.  Fearnhead 
Knight  V.  Barber 

V.  Boughton 
V.  Hunt 
Kruges  v.  Wilcox 
Kymer,  Halford  v. 
Kynaston,  Clayton  v. 

Lacy  V. 
Kyne  v.  Moore 
Kynman,  Whinman  v. 
Kynnersley,  Marquis  of  Ormond  v 


Lacey,  Thompson  v. 
Lack,  Thompson  v. 
Lackington  v.  Atherton     . 
Lacy  V.  Kynaston  . 

V.  Rhys 
Ladbrooke,  Wheelhouse  v. 
Laing  v.  Fidgeon 

Tucker  v.     . 
Lake  v.  Craddock 

Tyler  v. 

Williams  v. 
Lambert's  Case 


PAGE 

313 

73,  76 

261 

90 
127 

75 
116 
134 
398 

76 


204, 


212 

212 

127 

316 

376 

377 

31 

33 

90 

128 

37,  396 

390 

100 

72,  91 

344 

318 

293 

315 

296 

76 

299 

275 

60 

341 

230 

264 

122 

32 

177 

308,  311 

311 

89 

82 

196 


29 
116,  311 
.  44 
311 
248 
109 
400 
117 
305 
384 

79 
318 


XXVIU 


INDEX    OF    CASES   CITED    IN    ENGLISH    EDITION. 


PAGE 

Lambert,  Clonjrh  v.    . 

.     387 

Mason  v. 

68 

Lampcrt's  Case 

.     260 

Lamport,  Collins  v. 

60 

Lamplcigb  r.  Brathwait     . 

.       73 

Lane.    &    Yorkshire    Railway   Com- 

pany, Schotsmans  v. 

.       46 

Lane  v.  Burghart  . 

79 

Durnford  v. 

.     371 

Langdale,  Lord,  Ashton  v. 

348 

Langford,  Avery  v.    . 

.       91. 

In  re      .                   .      ^ 

285 

Langham's  Trust,  In  re     . 

.     348 

Langston,  Wetherell  v. 

304 

Lashbrook  v.  Cock     . 

.     307 

Lassells  v.  Cornwallis    . 

269 

Lauderdale,  Lord,  Garrard  v.    . 

.     299 

Lavater,  Walton  v.         .          244, 

299,  307 

Lavender,  Greedy  v. 

.     381 

Law  V.  Bagwell 

299 

V.    London    Indisputable     L 

ife 

Policy  Company 

177 

Lawrence,  Hall  v.       . 

.     196 

r.  Smith 

91 

Sollers  V. 

.     •  68 

Laws,  Blacklow  v. 

384 

Lawton  v.  Lawton     . 

15 

Laythoarp  v.  Bryant 

81 

Layton,  Hughes  v.     . 

.     233 

Lea,  Barker  v.         .         .         . 

378 

Leader  v.  Homewood 

15 

Leake  v.  Loveday  . 

25 

Monys  v.          ... 

.       92 

Leather  Cloth  Co.  Limited  v.  Ame 

ri- 

can  Leather  Cloth  Co.  Limited 

256, 257 

Lechmere  i\  Earl  of  Carlisle 

287 

V.  Fletcher 

.       82 

Ledsam,  Russell  v. 

237 

Lee,  Brown  v.    . 

.     115 

Fielding  v.      .         .         . 

54 

V.  Griffin    .... 

.       42 

Hopkinson  v. 

304 

V.  Lockhart 

.      122 

Morris  v.          ... 

87 

V.  Muggeridge    . 

.       76 

V.  Pain   .... 

351 

V.  Prieux    .... 

.     384 

Waring  v.       .         .         , 

273 

V.  Young    .... 

.     286 

Leeder,  Biddell  v. 

90 

Legg  V.  Evans    .         .         .         .2 

5,  32,  49 

Leicester,  Furniss  u. 

399 

V.  Rose 

.   .      122 

Leighton  v.  Wales 

71,  91 

Leith,  Mant  v.    . 

.     282 

Lempriere,  De  la  Garde  v. 

378 

Leonard  v.  Baker 

.      169 

Leonino,  Gilkes  v. 

81 

Lepard  v.  Vernon 

.     398 

Lescher,  Bain  v.     , 

351 

Leslie  v.  Guthrie 

".       62 

Leslie  v.  Richardson 

Sing  V.    . 
Lett,  Stahlschmidt  v. 
Le  Vasseur  v.  Scratton 
Lewen  v.  Dodd 

Lewers  v.  Earl  of  Shaftesbury 
Lewis  Bowles's  Case       .         .* 
Lewis,  Gilbert  v.        ,         . 

Heath  v.      .         .         . 

V.  Madocks 

V.   Marling 

Reynell  v.       .         . 
Lickbarrow  v.  Mason 
Liford's  Case 
Limbard   v.   Grote 
Limerick,  Earl  of  Gray  v. 
Lincoln  v.  Windsor 
Lindsay  v.  Gibbs 
Lingard,  Ex  parte 
/Lingen  v.  Sowray 
Linley  v.  Taj'lor     . 
Linton,  TroUope  v.    . 
Lisle,  Agar  v.  .         .         , 

Lister,  Tidd  v.    . 
Littlefield  v.  Shee 
Liverpool,  Corp.  of  Scott  v. 

United    Gas    Light 
Hills  V. 
Livesay  v.  Redfern 
Llanwarne,  In  the  Goods  of 
Lloyd  V.  Ashby 

V.  Baldwin 

Bromage  v. 

Cullingworth  v. 

Harris  v.       .         .         . 

V.  Lloyd 

Powell  V. 

V.  Tench 
Lock,  Jones  v. 
Lockhart,  Lee  v. 

V.  Reilly 
Lodge  V.  Pritchard 
Loftus,  Ricketts  v. 
Logan,  Hopkins  v. 
Lomas  v.  Wright    . 
London,  Easton  v. 
London  Dock  Company  Calvert  v 

Indisputable  Life  Policy  Co., 
Law  V.    . 
Londonderry   &    Cholcrain    Railway 
Company,  Reg.  v.         .         .         . 

Graham  v.     ,  .         . 

Long  V.  Storie         .... 
Longman  v.  Tripp      .... 
Longstaflf  v.  Meagoe 
Lonsdale,    Earl   of,   v.    Countess    of 

Berchtoldt  .... 

Lonsdale,  Earl  of,  Rigg  v. 

Prideaux  v.     . 
Lord,  In  re         .         .         .         .      195 
Love  V.  Gaze  .... 


PAOE 

189 

.     274 

405 

371,  379 

307 

.       64 

19 

384 

370 

296 

237 

320 

45 

18 

274 

273 

292 

62 

196 

288 

348 

372 

24 

379 

76 

184 

jO. 

.     237 

345 

359 

318 

.     288 

85 

122 

16 

3,  350 

370 

123 

362 

36 

122 

115 

313 

272 

73 

110 

12 

116 

177 

211 
374 

92 
255 

14 

266 
22 
383 
196 
353 


INDEX    CF    CASES    CITED    IN    ENGLISH    EDITION. 


XXIX 


Loveacres  d.  Mudge  v.  Blight 
Loveday,  Leake  v. 
Lovell  V.  Hicks 
Loveridge  v.  Cooper 
Low,  Edmonds  v. 

V.  Routledge 
Lowe,  Banner  v. 
Lowndes  v.  Collins 

V.  Lowndes 
Loy,  Hodgson  v. 
Luard's  Case 
Lucas  V.  Dorrien    . 

V.  Wilson 
Lucy's  Case    . 
Lunn,  Bank  of  England 

V.  Thornton 
Lushington  v.  Boldero 
Lyddon  v.  Ellison 
Lyde  v.  Barnard 

V.  Russell 
Lye,  Cruttwell  v. 
Lygon  V.  Lord  Coventry 
Lynch  v.  Dalzell 
Lyon  V.  Baker 

Perrin  v. 
Lyons  v.  De  Pass   . 
Lysons  v.  Barrow 


M. 

Maberley  v.  Turton    . 
Macarthur  v.  Campbell 
Macaulay,   Bailey  v. 
M'Culloch,  Barrack  v.    . 
M'Donald,  Walter  v. 
M'Donnell  v.  Hesilrige 
Macdougall,  Harnett  v. 

V.  Robertson 
M'Ewan  v.  Smith 
M'Guire,  Ashburner  v. 
M'lver  V.  Humble 
M'lvers,  Howell  v. 
Mackay,  Bentley  v.    . 
M'Kenzie's  Settlement,  Re 
Mackenzie  v.  Mackenzie 
Sandeman  v. 
Mackinnon  v.  Stewart 
Mackintosh  v.  Trotter    . 
Wellington  v 
Mackrell,  Holmes  v. 
M'Laine,  Hoadley  v. 
Maclaren  v.  Stainton 
Macleod  v.  Annesley 

V.  Drummond 
M'Michael,  Boydell  v. 
Macnaught  v.  Russell 
M'Neillie  v.  Acton 
Macoubrey  v.  Jones 
M'Queen  v.  Farquhar 
Maddison,  Benyon  v. 


PAGE 

.     307 

25 

.     318 

407,  409 

.     346 

248 

.     265 

114 

.      193 

44 

.     382 

37 

.      193 

74 

206,  208 

34 

18 

274 

84,  409 

15 

.     258 

281 

.     179 

292 

.     369 

396 

.     334 

.     280 

194 

.     320 

298 

85 

298 

.     386 

188,  189 

.       37 

344 

.     315 

117 

.     298 

296 

.     267 

273 

.     299 

14 

.      183 

77 

.       40 

263 

.     283 

339 

.        16 

128 

.     315 

274 

.     275 

266 

PAGE 

Madeley,  Gaters  v.     . 

. 

376 

Madocks,  Lewis  v. 

,         ^ 

296 

Maguire,  Caulfield  v. 

. 

114 

Mainwaring's  Settlement,  Re 

296 

Malcolm  v.  Charlesworth 

379 

Malkin  v.  Adams    . 

133 

Attorney-General  v. 

267 

Mallan  v.  May 

.    90,  91 

Mallett,  Dannicliflf  v. 

307 

Malone  v.  Minouglian     . 

11 

Maltby  v.  Carstairs    . 

, 

116 

Man  V.  Shiffner 

30 

Manchester,    Sheffield,    &c. 

Railway 

Company,  Hubbersty  v. 

, 

211 

Manders  v.  Williams 

27 

Mann,  Burnett  v.    . 

,         , 

362 

Mangles,  Naylor  v. 

. 

30 

Manning's,  Matthew,  Case 

260 

Kekewich  v. 

298 

Manser   v.   Heaver 

. 

191 

Mant  V.  Leith     . 

. 

282 

March  v.  Attorney-General 

348 

V.  Head 

377 

V.  Russell    . 

341 

V.  Warwick     . 

, 

128 

Mare  v.  Earle 

,         , 

122 

■V.  Warner 

, 

122 

Market  Overt,  the  Case  of 

396 

Markham,  Bunn  v.     . 

327 

Marlborough,  the  Duke  of,  v 

St.  John 

68 

Marling,  Lewis  v. 

237 

Marris,  Bower  v.     . 

121 

Marriott  v.  The  Anchor  Reversionary 

Co.  Limited 

60 

Marsh,  Archer  v. 

91 

V.  Conquest 

248 

Stone  V. 

.      318 

397 

Marshall  v.  Fowler 

378 

Gardner  v. 

377 

Holroyd  v. 

35 

Martin,  Collins  v. 

87 

V.  Crompe 

305 

Reynish  v.     . 

370 

V.  Sedgwick 

319 

409 

Townsend  v. 

345 

Martindale,  Anderson  v. 

304 

V.  Booth 

,         , 

48 

V.  Smith 

39 

Taylor  v. 

. 

199 

Mason  v.  Broadbent 

403 

Davis  V. 

91 

V.  Haddan 

184 

V.  Lambert 

68 

Lickbarrow  v.     . 

45 

V.  Morgan 

, 

375 

Sidwell  V.   . 

77 

V.  Wallis 

189 

Massy  v.  Hayes 

384 

Matthew  v.  Fraser 

14,  50 

Mather  v.  Scott 

349 

Mathers  v.  Green 

, 

307 

XXX 


INDEX    OF   CASES    CITED    IN    ENGLISH    EDITION. 


PAGE 

Mathias,  Gray  v.     . 

89 

Matthews  v.  Brise 

.     282 

Houfrhton  V.  . 

30 

Young  V.    . 

.       36 

Maude,  Benson,  v. . 

341 

Scales,  V. 

3G 

Maunder,  Wright  v. 

1G8 

Maw,  Elwcs  V.    . 

15 

Mawdesley,  Driver  v. 

299 

Maxwell's  Trust,  In  re 

.     263 

May  V.  Chapman    . 

87 

Mallan  v.    . 

90,  91 

Mayor,  Boaler  v.     . 

116 

Squire  v. 

.        16 

Maze,  Aubert  v. 

89 

Meacher  v.  Younge    . 

.     280 

Meagoe,  Longstaff  v. 

14 

Medina  v.  Stoughton 

.     399 

Medworth  v.  Poi)c 

349 

Meek  v.  Kettlewell     . 

75 

Melvill,  Otter  v.      . 

296 

Melville,  Preston  v.    . 

.     263 

Mentney  v.  Petty    . 

362 

Menzies,  Betts  v.         .         . 

.     237 

Mercer  v.  Irving 

72 

Meredith  v.  Fftrr 

.     350 

Merrett,  Powell  v.  . 

364 

Merriman,  Elliott  v.  . 

.     339 

V.  Ward 

121 

Merry,  Kingsford  v.    . 

37,  396 

Merryweather  v.  Jones  . 

387 

Meryon  v.  Collett 

.     267 

Metcalf,  Wise  v. 

68 

Metropolitan  Co.,  &c.,  Soc. 

V.  Brown        14 

Meux  V.  Bell  . 

408 

Mexborough,  Bower  v. 

.     183 

Meyer,  Hanson  v.    . 

39 

V.  Haworth 

.       76 

Meyrick,  Attorney-General 

V.         .         347 

Michell  V.  Michell 

.     264 

Michelmore  v.  Mudge 

379 

Middleton,  Copis  v.     . 

.     114 

Miles  V.  Presland    . 

206 

Mill,  The  Queen  v.     . 

.     242 

Miller,  Hornsby  v. 

49 

V.  Miller 

36,  327 

V.  Race 

395 

Spackman  v.  . 

49 

Stranger  v. 

123 

V.  Taylor 

.     246 

Mills  V.  Barber 

84 

Milne,  Walker  v. 

.     348 

Walmesley  v. 

14 

Milner  v.  Lord  Harewood  , 

.     371 

Milvain,  Chapman  v. 

214 

Minnit  v.  Whinery 

.     319 

Minoughan,  Malone  v.    . 

11 

Mitchell,  Brooke  v.     . 

25,  188,  189 

Doe  d.  Esdaile  v. 

150 

V.  Ede 

.       37 

Humble  v. 

204,  230 

Mitchell,  Holmes  v. 
Moffait,  Bank  of  England  v. 
Mollard,  Bagley,  v. 
MoUett  V.  Wackerbath 
Molony  v.  Kennedy 
Monkman  i'.  Shejjherdson 
Montague  v.  Benedict     . 
Monteliore  v.  Guedalla 
Montolieu,  Lady  Elebank  v. 
Monj's  V.  Leake 
Moodie  v.  Bannister 
Moor  V.  Barham 
Stokes  V. 
Williams  v. 
Moore,  Cramer  v.   . 

V.  Darton 

V.  Frowd 

Kyne  v.  . 

V.  Moore 
Morell  V.  Dubost 
Morgan,  Ex  parte  . 
Mason  v. 
Osborn  v. 
Rickman  v 
V.  The  Earl  of  Abergav 
Morley  v.  Attenborough 

Bird  V. 

V.  Boothby 

Child  V.       . 

V.  Rennoldson 

Roddam  v. 

Wright  V. 
Mornington  v.  Keane 
Morris  v.  Glynn 

V.  Howes 

Jones  V. 

V.  Kearsley 

V.  Lee 

Morrison,  Collett  v. 

Dutton  V. 

V.  Glover 

Mortiraore  v.  Mortimore     . 

Morton  v.  Copeland 

Honner  v. 

V.  Tibbett  . 
Moseley,  Inge  v. 
Mosley  v.  Baker 
Moss,  Burrough  v. 
V.  Hall 

Turquand  v.     . 
Motley  V.  Downman 
Mudge,  Michelmore  v. 
Muggeridge,  Lee  v. 
Mullen  V.  Bowman 
Munnings,  Attwood  v.    . 
Munro,  Ex  parte 
Murray  v.  P^ast  India  Company 

V.  Lord  Elibank     . 

Woodhouse  v.    . 
Mussen,  Kinnersley  v. 
.Myers  v.  Perigal 


enny 


PAGE 
79 

208 
350 

88 
384 

76 
383 
347 
377 

92 
402 
362 

81 

77 
296 
327 
292 

89 
386 

99 

12 

37 
378 
347 

20 

399 

303, 351 

.       79 

203 

369,  370 

402 

379 

297 

348 

267 

126 

305 

87 
177 
123 
232 
282 
248 
380 

41 

89 
232 
375 
116 
128 
257 
379 

76 
352 
398 
408 
404 
378 

51 
100 
348 


INDEX   OF   CASES    CITED    IN    ENGLISH    EDITION. 


XXXI 


N. 

Nash  V.  Hodgson 

Sprigens  v.     , 
Naylor  v.  Mangles 
Neate,  Franklin  v. 
Needham  v.  Kirkman 
v.  Smith 
Webb  V.      . 
Neilson,  Ex  parte   . 

V.  Harford    . 
Nesham,  Barry  v.    . 
Netherseal,  Rex  v. 
Nevill,  Walker  v.    . 
Newall,  In  re 
Newbon,  Wakefield  v. 
Newman,  Page  v. 
Newnham,  Parberry  v 
Newton,  Ex  parte 

V.  Askew 

V.  Beck 

and  Hetherington 
Nichol,  Jackson  v. 
Nicholls  V.  Bastard 

V.  Judson 

V.  Rosewarne 

V.  Stretton    . 
Nichols,  Inglebach  v. 

V.  Norris 

V.  Roe 
Nicholson  v.  Bower   . 
Potter  V. 
V.  Potts 
V.  Revill 
Nickels  v.  Haslam 
Nicolls,  Smith  v.    . 
Nimmo,  Ellis  v. 
Nix,  Brj-ans  v. 
Nixon  V.  Brownlow    . 
Noble,  Devaynes  v. 

Vulliamy  v.     . 
Nockolds,  Hunter  v. 
Norbury  v.  Norbury  . 
Norcliffe,   Ambergate,   &c 

Company  v. 
Norcott  V.  Gordan 
Norfolk  Estuary  Co.,  Hall 
Norman  v.  Baldry 

Fergusson  v. 

V.  Phillips     . 

V.  Thompson 
Norris  v.  Irish  Land  Co 
Nichols  V.     . 
V.  Wright 
North  Eastern  Metropolitan 

District,  Gibbons  v.  . 
Northey  v.  Field 

V.  Northey 
Norton  v.  Frecker 
Norton's  Patent 
Norwood,  Elvy  v. 
Nourse,  Richardson  t). 


,  Re 


Railway 


Asylum 


PAGE 

83,  121 

195 

30 

27 

.     296 

296 

.     356 

216 

.     241- 

316 

.     332 

128 

237,  238 

31 

.     114 

189 

.     292 

298 

11 

186 

.       45 

27 

.     346 

234 

90,  91 

127 

.     122 

193 

.       41 

100 

.     127 

116,  311 

.     241 

102 

.       75 

37 

.     212 

121,  312 

.     315 

403 

201 

212 

346 

211 

341 

89 

42 

120 

63 

122 

283 

81 
45 
374 
405 
237 
403 
192 


Nugent,  Blair  v. 

V.  Gifford 
Numes  v.  Scipio 


PAGE 
401 

339 
204 


0. 


Observer    Life    Assurance    Society, 

Hodson  V.      .         .         .         .         . 

176 

Ockenden,  Ex  parte 

29 

Ogilvie  V.  Foljambe  .... 

81 

Oldham  v.  Hughes 

287 

Olive,  Stephens  v.      .         .         .         . 

387 

Oliver,  Ex  parte      .... 

122 

Smith  V.          .... 

349 

Oliveira,  Beaumont  v.    . 

349 

Onslow  V.  Onslow      .... 

364 

Onwhyn,  Stockdale  v.    . 

91 

Ormond  (Marquis  of)  v.  Kynnersley. 

196 

Orr  V.  Dickinson     .... 

61 

Osborn  v.  Morgan       .... 

378 

Silkv 

158 

Other  V.  Iveson           .... 

309 

Otter  V.  Melvill       .... 

296 

Oulton,  Crallan  v.      .         ,         .         . 

405 

Ouseley  v.  Anstruther    . 

201 

O^erhill's  Trust          .... 

350 

Owen,  Eardley  v 

296 

V.  Homan 

116 

V.  Thomas  .... 

81 

Oxford,  Earl  of,  Beavan  v. 

206 

P. 

Packman,  Sloane  v.  . 
Page  V.  Bennett 
V.  Newman 
V.  Page  . 
Powles  V. 
Paget  V.  Foley 
Pain,  Lee  v. 

Ridout  V. 

V.  Whitaker 

Paine,  Gleaves  v. 

Palles,  Simmonds  v. 

Palmer,  Eraser  v. 

Hall  V. 

Hay  V. 

Vandenberg  v, 
V.  Wakefield 
V.  Wheeler 
Parberry  v.  Newnham 
Pardo  V.  Bingham 
Paris  V.  Paris 

Sparrow  v. 
Parish,  Drummond  v. 
Parker,  Baldey  v. 
Clarke  v. 
Hoare  v. 
Si^arling  v. 


92 

180 

114 

351 

319,  409 

493 

.  351 

192,  193 

28 

377 

.  299 

292 

89 
265 

36 
382 
275 
189 
402 
263 

71 
323 

41 
370 
261 
348 


xxxu 


INDEX    OF   CASES    CITED    IN    ENGLISH    EDITION. 


PAGE 

PAGE 

Parker,  Stancs  v. 

.     292 

Peter  v.  Rich 

115 

Watson  V. 

110 

Peterborough  (Bishop  of),  Boyle 

V.  .     272 

Parke?  v.  Smith 

.     18G 

Petre  v.  Espinasse 

298 

Parkin  r.  Tarrnthcrs 

314 

Petrie  v.  Bury 

.     302 

Parkinson,  Ames  v.    . 

.     201 

Pettitt,  Thompson  v. 

39 

Parnliam  v.  Hurst 

117 

Petty  V.  Anderson 

.     383 

Parrott,  Alger  v. 

.     267 

Mentney  v.    . 

. 

362 

Parry,  Barrett  v.     . 

189 

V.  Sty  ward 

.     306 

Parsons,  IJank  of  England  v.     .         .     208 

Pfleger  v.  Browne 

. 

120,  122 

Harms  v. 

91 

Phelp  V.  Anicotts 

. 

.     296 

Partington.  Andrews 

V.      .         .          .     280 

Phihintliroi)ic  Society  t 

.  Kemp 

349 

Partridge,  Whcldale 

;.  .         .         .         287 

Philips  V.  Robinson   . 

10 

Pass.  Poole  ?>.    . 

.     293 

Phillips,  Norman  f. 

. 

42 

Patcli,  Channon  v. 

18 

V.  Phillips    . 

305,  307 

Patent   Derrick   Co., 

Thames    Iron 

Swann  v. 

. 

84,  409 

Works  Co.  v. 

29 

Phillipson  v.  Gatty    . 

.     282 

Paton  V.  Sheppard     . 

.     264 

Pkilpot  I'.  Briant    . 

117 

Panll  V.  Best 

155 

Philpott,  Ex  parte 

.     123 

PaMie  V.  Gunn 

73,  204 

V.  St.  George' 

B  Hospital 

349 

Pawlett  (Lord  William),  Ex  parte         283 

Phipps,  Holford  v. 

.     293 

Paxton,  Cliolmeley  v. 

.       19 

Pickering  v.  Appleby 

204 

V.  Popham 

88 

V.  Busk 

.     398 

Payne  v.  Dcakle 
Paynter,  Adams  v. 

.     189 

V.  Dowson 

399 

291 

V.  Ilfracombe 

Railway 

Co.     207 

V.  Harrison 

.     118 

Pocock  V. 

. 

.       ,101 

Peacock.  Berriman  v. 

18 

Pickford,  Aspinall  v. 

.       30 

Hunt  V. 

.     406 

Picton,  Shaw  v. 

121 

V.  Rhodes 

.  85,  395 

Ridding  v.  How 

.     257 

Peake,  Ex  parte 

.     313 

Pidgley  v.  Rawling 

. 

18 

Pearly  v.  Smith 

264 

Pierce  v.  Thornely     . 

. 

.     379 

Pearse  v.  Jackson 

.     233 

Pierson  v.  Garnet 

. 

274 

Pearson  v.  Dawson 

.     37,  42 

Piggott,  Clancey  v.    . 

. 

.       79 

Foster  v. 

.     395 

Wilson  V. 

. 

272,  273 

Frceland  v. 

352 

Pigot  V.  Cubley 

27,  28 

Peck,  Dawes  i'. 

42,  45 

Pigot's  Case 

. 

88 

Pedley  r.  Goddard 

193 

Pilck,  Shower  v. 

. 

.       36 

Peel,  Cockburn  v. 

.     284 

Pilkington,  Smith  v. 

232 

V.  Tatlock      . 

116 

Pimbley,  Fisher  v.     . 

.     192 

Peer  v.  Humphrey 

.     396 

Pinchon's  Case 

. 

105 

Peering,  Ford'y. 

12 

Pinke,  Hinton  v. 

.     344 

Pelly  V.  Wathen 

.       31 

Pinkney  v.  Hall 

318 

Pemberton,  Ex  parte 

31 

Piper,  Cradock  v. 

.     292 

V.  Yaugh 

an     .         .         .91 

Pitt,  Higgins  i'. 

122 

Worthan 

It;.          .         .         377 

Plaice,  Russell  v. 

.     339 

Pendlebury  v.  Walkc 

r        .         .      116,122 

Plait  V.  Routh 

337 

Penriell  ?'.  Reynolds 

134 

Plummer,  In  re 

.     313 

Pennistone,  Waterfal 

Iv.    .         .         .50 

Plymouth  (Eafl  of),  Ri 

dout  V. 

374 

Penny  v.  Innes 

86 

Pocock,  Brown  v. 

.     385 

Penoyre,  Ward  v. 

.     341 

V.  Pickering 

■ 

101 

Penton,  Davies  v.  . 

71 

Roberts  v.     . 

.     345 

Perigal,  Myers  v. 

.     348 

Pole  V.  Harrobin    . 

89 

Perkins  v.  Bradley 

47 

Poole,  Crofton  v. 

.     158 

Groves  v. 

.     378 

V.  Pass 

293 

W^alker  v. 

89 

Pope,  Medworth  v.     . 

.     349 

Perrin  v.  Lyon  . 

.     369 

Rusden  v. 

60 

Perry,  Creed  v. 

381 

Seagrave  v. 

.     232 

V.  Jenkins 

.     404 

Popham,  Paxton  v. 

88 

V.  Truefit     . 

257 

Poppleton,  Everard  v. 

.     101 

Perry's  Executors  v. 

The  Queen         .     352 

Porter,  Watts  v.     . 

206 

Fetch  V.  Tutin 

34 

Whitehead  v. 

.      126 

Peter  v.  Compton 

.       80 

Portland  (Duke  of),  Topham  v. 

275 

INDEX   OF    CASES    CITEI>  IN    ENGLISH    EDITION. 


XXXIH 


PAGE 

Pott  V.  Eyton     , 

.     316 

Potter,  Hall  v. 

370 

Kirby  v. 

.     344 

V.  Nicholson 

100 

Potts,  Nicholson  v.    . 

.     127 

Powel,  Shafto  v.     . 

102 

Powell  V.  Hellicar      . 

.     327 

V.  Lloyd 

123 

V.  Merrett 

.     SGi 

V.  Rees 

67 

Power  V.  Barham 

.     399 

Powle  V.  Gunn 

73 

Powles  V.  Page 

.      319,  409 

Pownal,  Hoist  v.     . 

45 

Prance  v.  Sympson    . 

.       77 

Presland,  Miles  v. 

206 

Prescot,  Snee  v. 

44 

Prescott  V.  Boucher 

377 

Holmes  v.    . 

.     268 

Hopkins  v. 

90 

Preston  v.  Melville     . 

.     263 

Prestwood,  Durant  v.     , 

362 

Price  V.  Anderson 

.     263 

Barker  v. 

311 

V.  Green   . 

.        71 

Green  v. 

.     90,  91 

Harrington  v.    , 

.        10 

Hewitt  V. 

230 

Hyde  v.     . 

.     114 

Prosser  v. 

233 

V.  Richardson  . 

.       79 

Pride  v.  Fooks 

201,  293 

Prideaux  v.  Lonsdale 

.     383 

Prieaux,  Lee  v. 

384 

Pring  V.  Pring    . 

.     352 

Prior  V.  Hembrow 

188 

Pritchard  v.  2\rbouin 

•.     349 

Lodge  V. 

313 

Shaw  V.      . 

92 

Proctor  V.  Sergent 

91 

Prosser,  Evans  v. 

.     370 

V.  Price 

233 

Proudley  v.  Fielder    . 

.     384 

Pryor  v.  Pryor 

275 

Pugh  V.  Stringfield    . 

.     305 

V.  Tajior 

383 

Pulham,  Firmin  v. 

..     293 

Pullen  V.  Purbecke 

53 

Purbecke,  Pullen  v.  . 

.       53 

Purdew  v.  Jackson 

380 

Pye,  Ridout  v. 

.      191 

Pym  V.  Great  Northern  Ra 

ilw.  Co.           65 

Sweet  V.     . 

32 

Q. 

Quartermaine  v.  Bittleston 
Queen,  The,  v.  iMill 

V.    The    Lords 
Treasury     . 
c 


of    the 


54 
242 


264 


Queen,  The,  Perry's  Executors  v.  . 
V.  Whitmarsh 


R. 


Race,  Miller  v. 
Rachfield  v.  Careless 
Radburn  v.  Jervis 
Ralph,  Bird  v. 
Ralston  v.  Smith 
Ram,  Ex  parte 
Ramsbottom,  Harcourt  v. 

Hooper  v. 
Ramsden  v.  Smith 
Randall  v.  Randall 
V.  Russell 
Rankin,  Holderness  v.    . 

V.  Weguelin 
Rann  v.  Hughes 
Rannie  v.  Irvine 
Ransome  v.  Burgess 
Ravenshaw  v.  HoUier 
Rawling,  Pidgley  v. 
Rawlins  v.  Jennings 

In  re 
Rawlinson  v.  Clarke 

"Williams  v.   . 
Rawson  v.  Johnson 
Rawsthorn  v.  Arnold 
Read,  Belding  v. 
Reay,  Cookson  v.   . 
V.  Richardson 
Redfern,  Livesay  v. 
Reed  i\  Wilmot 
Rees  V.  Keith 

Powell  V.   . 

Reeve,  Beaumont  v. 

V.  "Whitmore 

Reeves  v.  Watts 

Rcgina  v.  Londonderry  and  Col 

Railway  Company 

V.  Whitmarsh 

Reid,  Donellan  v. 

V.  Fryatt 

V.  HoUinshead 

West  V. 

Reilly  V.  Jones    . 

Lockhart  v. 
Rcindell  v.  Schell 
Rendall,  King  v.     . 
Rennoldson,  Morley  v. 
Revill,  Nicholson  v. 
Rex  V.  Bardell    . 

V.  Collector  of  Customs 

v.  Greenhill 

V.  Hill      . 

V.  Netherseal 

V.  Sankey 

V.  Sherrington  . 

V.  Wheeler 


PAGE 

352 
214 


369, 
11 


211 
214 

80 
189 
318 
409 

71 
115 

71 
128 
370 
6,  311 
186 
305 
389 
190 
332 

31 
388 
241 


XXXIV 


INDEX    OF   CASES   CITED    IN    ENGLISH    EDITION. 


PAQE 

Reynell  v.  Lewis    . 

320 

Reynish  v.  Martin 

.     370 

Reynolds,  Bodley  v. 

4G 

V.  Bowley 

.     314 

V.Hall    . 

54 

Pennell  v. 

.      134 

Robinson  v.  . 

87 

Rhodes,  Howard  v. 

.     292 

Peacock  v. 

.  85,  395 

V.  Sractliurst 

.     405 

Rhys,  Lacy  v.         .         .         . 

248 

Rice  V.  Shute     .         .         .         . 

.     312 

Weall  V.          ... 

346 

Rich,  Peter  v.     . 

.     115 

Richards  v.  Heather 

309 

V.  James 

50 

V.  Richards 

376 

Wilding  V. 

.     299 

Richardson  j;.  Bank  of  Englan 

i     .          213 

V.  Brown 

.     399 

Ex  parte 

315 

V.  Gilbert 

.     247 

V.  Greese     , 

346 

V.  Horton 

.     309 

Hume  V. 

284 

V.  Jenkins 

.      lOG 

Leslie  v. 

189 

V.  Nourse 

.      192 

Price  V. 

79 

Reay  v.  . 

.      120 

Warwick  v. 

308 

Riches,  In  re      . 

.     319 

Ricketts,  Griffiths  v. 

287,  299 

V.  Loftus 

.     272 

Rickman  v.  Morgan 

347 

Ridgway  v.  Clare 

,     313 

Ridley  v.  Ridley 

80 

Ridout  V.  Earl  of  Plymouth 

.     374 

V.  Pain 

192,  193 

V.  Pye     . 

.      191 

Rigby,  Re       ...         . 

102 

Jenning  v. 

.      102 

Rigg  V.  Earl  of  Lonsdale 

22 

Right  d.  Compton  v.  Compton 

.     270 

Ripley  v.  Waterwort 

208 

Rishton  v.  Cobb 

.     369 

Roberts,  Bramah  v. 

319 

Cave  V. 

.     364 

V.  Pocock 

345 

V.  Spicer 

.     384 

V.  Walker 

47 

V.  Wyatt      . 

25 

Robertson,  Dimsdale  v. 

189 

MacDougall  v. 

.      188,  189 

Robinson,  Brandon  v.     . 

385 

Crow  V.     . 

.     207 

Cusack  V. 

41 

V.  Geldard 

.     349 

Philips  V. 

10 

V.  Reynolds 

.       87 

V.  Robinson  . 

201,  282 

PACE 

Robinson  v.  Wheelwright 

.     385 

Roddam  v.  Morley 

402 

Rodway,  Sanders  v.  . 

.     387 

Roc,  Nichols  v 

193 

Rogers,  Abbott  v.      .         .         . 

.     215 

V.  Acaster 

381 

Chaplin  v.     . 

.       36 

V.  Kennay 

25 

Rogers's  Trusts          .         .         .     . 

.     265 

Rolle,  Ryall  v 

49 

Rose,  Leicester  v.       .         .         . 

.     122 

Rosewarne,  Nicholls  v. 

234 

Rosier,  Shackell  v.     . 

.       74 

Rose  V.  Adcock      .... 

69 

Bateman  v.         .         .         . 

.     388 

Ross's  Trust 

386 

Rossitcr,  Hooper  v.    . 

.     263 

Rouch  V.  Great  Western  Railway  C 

0.     150 

Round,  Addison  v.     . 

.       25 

Roundell  v.  Brearey 

297 

Routh,  Piatt  V.            ... 

.     337 

Routledge  v.  Dorril         .         .          2 

74,  276 

V.  Grant   . 

.       81 

Low  V.            ... 

248 

Rowland,  Clegg  v.     . 

.     342 

Rowlands,  Coi)e  v.          .         .         . 

89 

Rowlandson,  Ex  parte 

.     316 

Rowles,  Ryall  v 

36,  49 

Royal  Exchange  Assurance  Co.  E 

1- 

liott  V.    . 

.     184 

Royal  Mail  Co.,  European  Co.  v.    . 

60 

Ruddell  V.  Dobree 

.     327 

Rudge  u.  Winnall  .... 

17 

Rusdcn  V.  Pope 

.       60 

Rushforth  v.  lladfield    . 

30 

Russell,  Douglas  v.    . 

.       62 

Huntley  v.          .         .         . 

69 

V.  Ledsliam  . 

.     237 

Lyde  v 

15 

Macnaught  v. 

.      128 

March  v.    . 

341 

V.  Place 

.     339 

Randall  v.          .         .         . 

262 

r.  Smith 

.     248 

Rutland,  Duke  of,  v.  Duchess  of  Ru 

t- 

land 

662 

Ryall  V.  Rolle     .... 

.       49 

V.  Rowles     .... 

36,  49 

s. 


Saddler's  Company  r.Badcock  . 
St.  George's  Hospital,  Philpott  v.  . 
St.  John,  Lord,  v.  Boughton,     . 

Lord,  D.  St.  John,  Lady    . 
St.  John,  Duke  of  Marlborough  v. 
Sainter  v.  Ferguson 
Salkeld,  In  re  ... 

Saloon  Omnibus  Conpany,  Hale  v. 
Salt,  Stead  v.     . 


179 

349 

401 

388 

68 

71 

196 

52 

319 


INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


XXXV 


PAGE 

Samon's  Case         .... 

191 

Samuda,  Zwinger  v. 

3T 

Samuel  v.  Duke      .... 

396 

V.  Howarth    . 

.      116 

Sandeman  v.  Mackenzie 

273 

Sanders,  Bloxam  v.     . 

43,  46 

V.  Rodway 

387 

Sanderson  v.  Bell 

.       29 

Sandwich,  Lord,  Case  of 

275 

Sandys,  Warburton  v. 

.     290 

Sanger,  Cuttcn  v 

298 

Sankey,  Rex  r.            ... 

.       31 

Sargent,  Higgins  v.         .         .         . 

114 

Saunders,  De  Mautort  v.    . 

.     312 

ToUit  V.          .         .         . 

196 

V.  Topp 

.       41 

V.  Wakefield  . 

79 

Savage,  Browne  v.     . 

.     408 

Saville  v.  Barchard 

30 

Sawyer,   Whittem  v.          , 

.     378 

Sayers,  Horton  v 

183 

Scales  V.  Maude 

36 

Scarborough  v.  Borman          .          3 

85,  386 

Scarpellini  v.  Atcheson      . 

.     376 

Scattergood  v.  Sylvester 

397 

Schell,  Reindell  v.      .         .         . 

.       71 

Schwabe,  Clift  v 

176 

Scipio,Numes  v.         .         .         . 

.     204 

Scott  V.  Avery        .... 

184 

Champernown  v. 

.       31 

v.  Corporation   of  Liverpool 

184 

Scott,  Driver  v.          .         .         . 

.     293 

Drury  v.       .         .         .         . 

296 

Evans  v.           ... 

.     278 

V.  Jones        .         .         .         . 

406 

V.  Lord  Hastings 

.     207 

Mather  v 

349 

V.  Spashett      .         .         .      . 

377,  379 

V.  Van  Sandau     . 

187,  191 

Scottish  Union,  &c.,  Simpson  v. 

.     180 

Scratton,  Le  Vasseur  v. 

ill,  379 

Seagrave  v.  Pope 

.     232 

Seaton  v.  Benedict 

382 

Sedgwick,  Martin  v.    . 

319.,  409 

Seed  V.  Higgins      .         .         .         . 

242 

Selby  V.  Selby   .... 

.       81 

Self,  Fleming  v 

232 

Sergent,  Proctor  v.    . 

.       91 

Seton,  Clark  v 

108 

Sewell,  Stickney  v.    . 

.     282 

Shackell  v.  Rosier 

74 

Shaftesbury,  Earl  of,  Lewers  v. 

64 

Shafto  V.  Powel 

102 

Shalmer,  Spalding  v. 

.     288 

Shaw,  Badger  v.     . 

50 

Hodgson  V.       .         .         . 

.      114 

V.  Picton 

121 

V.  Pritchard    . 

92 

Shee,  Clarke  v.       .         .         . 

395 

Littlefield  v.     . 

.       76 

Shelley,  Gill  i- 

350 

Shepherd,  Cooper  v. 

Zachary  v. 
Shepherdson,  Monkman  v. 
Shepley  v.  Davis 
Sheppard  v.  Duke 
Shepperd  v.  Kain 
Paton  V. 
Sherrard  v.  Sherrard 
Sherrington,  Rex  v. 

V.  Yates 
Sherwood,  In  re     . 
Shewen  v.  Vanderhorst 
ShifFner,  Man  v.      .         .         . 
Shilling  V.  Accidental  Death 

ance  Company 
Shipbrook,  Lord,  v.  Lord  Hi 

brook     .... 
Shipman,  Bush  v.  . 
Shore,  Lady  v.  Billingsley 
Shorrock,  Boyd  v. 
Shortland,  Ex  parte  . 
Shower  v.  Pilck 
Shute,  Rice  v.    . 
Shuttleworth  v.  Greaves 

Wigg  V. 
Sibree  v.  Tripp 
Sidwell  V.  Mason 
Silk,  Jervoise  v. 

V.  Osborn 
Simmonds  v.  Palles   . 
Simmons,  Farebrother  v. 

V.  Gutteridge      . 
Simond  v.  Hibbert 
Simonds  v.  Hodgson 
Simpson,  Cowell  v. 

Garrod  c.    . 
V.  Scottish  Union, 
Thompson  v. 
Sims  V.  Thomas 
Simson  v.  Ingham 
Sinclair  v.  Jackson 
Sing  V.  Leslie    . 
Skarf  V.   Soulby     . 
Skeen,  Hogg  v. 
Skerrat,  Ex  parte  . 
Skey  V.  Barnes  . 
Skillern,  Amies  v. 
Skinner,  Braithwaite  v.     . 

V.  Upshaw 
Skip,  West  V.     . 
Slatter  v.  Slatter    . 
Sleech  v.  Thorington 
Slingsby's  Case 
Sloane  v.  Packman    . 
Smailes  v.  Wright  . 

Small,  Churchill  v.    . 

JefiFereys  v. 
Smallpiece,  Irons  v.  . 
Smartc  v.  Edsun     . 
Smethurst,  Rhodes  v. 
Smith,  Re       .         .         . 


Insur- 


nchi 


PAGE 

46 
193 

76 

40 
401 
399 
264 
264 
388 
375 
292 
405 

30 

176 


293 
122 
303 
50 
298 
36 
312 
344 
90 
120 
77 
280 
158 
299 
43 
330 
30 
182 
30,32 
126 
180 
.  275 
297,  403 
.  121 
403 
274 
297 
319 
298 
277 
303 
6 
29 
36 
388 
.  344 
302,  304 
.   92 
195 
12 
305 
36 
310 
405 
127 


XXXVl 


INDEX   OF   CASES   CITED   IN   ENGLISH   EDITION. 


PAOE 

PEGE 

Smith,  Allen  r.          .         .         . 

29 

Sprague,  Ex  parte 

.      '  314 

Antrobus  v. 

36 

Sprigens  v.  Nash 

.      195 

V.  Bond  .         .         .         - 

.      108 

Squire  v.  Mayor 

IG 

V.  Bruning 

370 

V.  Whitton      . 

.      116 

Carpenter  v.  . 

.     237 

Stafford,  Earl  of,  v.  Buckley  . 

199 

r.  Chichester 

31 

Stahlschniidt  i'.  Lett 

.     405 

V.  Clarke 

.        85 

Stainbank,  Davies  v. 

116 

Farmer  v.    . 

232 

Stainton,  Maclaren  v. 

.      263 

Fox« 

.     192 

Stallwood,  Tharpc  v. 

357 

Grace  v.      . 

316 

Stalworth  v.  Inns 

■  .      191 

V.  Hudson 

41,  45 

Stamford,  Heard  v. 

382 

V.  Hiirst 

299 

Stamper  v.  Barker     . 

.     388 

Hatchings  v. 

,     379 

Stanes  v.  Parker     . 

292 

V.  Jarvis 

318 

Stangcr  v.  Miller    . 

123 

V.  Keating 

.     299 

Staniland  v.  Willott  . 

.     328 

Lawrence  v. 

91 

Stanley  v.  Bernes  . 

325 

M'Ewan  v.      .        .        . 

.       37 

Stannard,  Angier  v.  . 

.     293 

Martindale  v. 

39 

Stansfeld  v.  Cubitt 

50 

Needham  v.    . 

.     296 

Stanton  v.  Hall 

.     379 

V.  Nicolls    . 

.102 

Stapleton  ?'.  Haymen 

57 

V.  Oliver 

.     349 

Stathani,  Adam  v. 

.      192 

Parkes  v.    . 

186 

Stead,  Barker  v.     . 

320 

Pearly  v.         .         .         . 

.     264 

V.  Salt     . 

.     319 

V.  Pilkington 

232 

Steadman  v.  Hockley 

31 

Ralston  v.       .         .         . 

.     242 

Stear,  Johnson  i'. 

28 

Ilamsden  v. 

296 

Steele,  Swan  v.       .         .         . 

318 

Russell  V.       .         .         . 

.     248 

Steinkeller,  Devaux  v. 

.       84 

V.  Smith    . 

341,  408 

Steinmetz  v.  Halthin 

378 

Vernon  v. 

.     179 

Stephens,  Edgeberry  v. 

.      239 

V.  Whitmore 

194 

Hart  V.  . 

376 

Whitmore  v.  . 

.     191 

V.  Olive     . 

.     387 

Williams  v. 

396 

Sterling,  Ex  parte 

31 

Smithard,  Cornforth  v. 

.       77 

Stevenson  v.  Blakelock 

.     30 

Snee  v.  Prcscot 

44 

Toft  V. 

403 

Snellgrove  i\  Baily    . 

.     327 

Steward  v.  Greaves 

214 

Snow,  Goddard  v. 

383 

Stewart,  Hitchman  v. 

.      115 

Wilbraham  v. 

.       25 

Mackinnon  v.    . 

299 

Soane,  Conduitt  v. 

262 

Stickney  v.  Sewell,    . 

.     282 

Sellers  V.  Lawrence  . 

.       68 

Stiff,  Cassell  v.       .         .         . 

254 

Somerville,  Hotham  v.  . 

12 

Stockdale  v.  Onwhyn 

.       91 

Somes,  British  Empire  Shippin 

g  Co-iJ.  29 

Stocken  i'.  Stocken 

280 

Sothern,  Swanwick  v.    . 

39 

Stocker  r.  Brockelbank     . 

,     316 

Souch  V.  Strawbridge 

80 

Stokes,  Brice  v. 

293 

Soulby,  Skarf  v.      .         .         . 

297 

V.  Holden 

.       47 

South  Carolina  Bank  v.  Case 

,     319 

V.  Moor 

81 

Sowray,  Lingen  v. 

288 

Stone  V.  Marsh  . 

.      318,  397 

Spackman  v.  Miller  . 

49 

Storie,  Long  v.        .         .         . 

92 

Spalding,  Alsager  v. 

122 

Stoughton,  Medina  v. 

.     399 

V.  Shalmer 

.     288 

Stoveld  V.  Hughes 

36 

Sparling  v.  Parker 

348 

Stafford,  Lord,  Byng  v. 

.     266 

Sparrow,  Ex  parte     . 

49 

Strang,  Berndtson  v. 

45 

Farmer  v. 

232 

Strathmore,  Countess  of,  v.  Be 

)wes    .     383 

V.  Paris 

.        71 

Stratton  v.  Grymes 

370 

Spashett,  Scott  v.  . 

377,  379 

Strawbridge,  Souch  v. 

.       80 

Spencer,  Hill  v. 

.       89 

Streatfield  v.  Halliday    . 

310 

V.  Spencer 

274 

Stretton,  Nicholls  v.  . 

90,  91 

Spettigue,  White  v.  . 

.     396 

Stringfield,  Pugh  v. 

305 

Spicer,  Roberts  v.  . 

384 

Strode  v.  Blackburne 

12 

Spiers,  Thompson  v.  . 

.      408,  409 

Strutt,  Decks  v.     ■. 

6 

Spirett  V.  Willows 

377 

Galsworthy  v. 

.       71 

Spooner,  Vandcnburgh  v. 

.       42 

Stuart  V.  Burrowes 

332 

INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION, 


XXXVll 


PAGE 

Stuart,  Grey  r.  . 

.     296 

Stubbs,  Hughes  v. 

299 

Studdy,  Churchward  I'. 
Sturges,  Welchmaa  v.    , 

.       21 
357 

Sturgis  V.  Charapneys 
V.  Darell     . 

.     311 
405 

Styles  V.  Guy     . 
Styward,  Petty  v.  . 
Sumner,  Gambart  v. 

.     293 

30G 

.     251 

Sunbolf  V.  Alford  . 

29 

Sutton  V.  Buck 

.       27 

Fitch  V.       .         .         . 

120 

Swallow  ('.  Binns 

.     "   .     277 

Swan  V.  Steele 

318 

Swann,  Joyce  v. 

V.  Phillips 

.       40 
84,  409 

Swans,  The  Case  of  . 

.        19 

Swanwick  v.  Sotheru     . 

39 

Swayne  v.  Swayne     . 
Sweet  V.  Benaing  . 

.     409 
247 

V.  Pym     . 

Swift  V.  Swift 

32 
389 

Swinburne,  Crsythorne  v. 

-      116 

Swindell,  CuUwick  v.     . 

14 

Swinnerton,  Heming  v. 

.     186 

Swinton,  Willoughby  v. 

109 

Sworder,  Castle  v. 

.       42 

Sylvester,  Scattergood  v. 
Symes,  Balch  v. 

397 
31 

Symonds,  Thompson  v. 
Williams  v. 

251 

.     400 

Sympson,  Prance  v. 

77 

Synge,  Howe  v. 

90 

PAGE 


Taggart,  Carter  v. 

264,  379 

Tapfield  v.  Hillman 

34 

Tappenden  v.  Burgess 

.     123 

Tate  V.  Hilbert 

327,  328 

Tatlock,  Peel  v. 

.      116 

Tattersall,  Kirkpatrick  v. 

76 

Taunton,  Wood  v.      .         . 

.      196 

Taylor  v.  Haygarth 

364 

Linley  v.         .         .         . 

.     348 

V.  Martindale 

199 

Miller  v.          .         .         . 

.     246 

V.  Pugh 

383 

In  re       . 

.     389 

Tetley  v.     .         .         . 

128 

V.  Turnbull     . 

.     207 

Wallis  V.     .         .         . 

267 

Waters  v. 

,     183 

Tebbs  V.  Carpenter 

201 

Teesdale,  Dickinson  v. 

.     406 

Tempest  v.  Tempest 

349 

Templeton  v.  Warrington 

.     277 

Tench,  Lloyd  v.      .         » 

362 

Tetley  v.  Taylor 

.      128 

Teynham,  Lord,  r.  Webb 

273 

Thames  Iron  Works  Company  v .  Patent 

Derrick  Company  . 
Tharpe  v.  Stallwood 
Thelluson,  Hobson  v. 
Thomas  v.  Desanges 
James  v. 
Owen  V.    . 
Sims  V. 
I'. /Thomas 
Thomason  v.  Frere     . 
Thompson  v.  Dominy 
Farrant  v. 
Fraser  v. 
V.  Griffith 
Hill  V.    . 
Jackson  v. 
V.  Lacey 
V.  Lack     . 
Norman  v. 
?).  Pettitt  . 
V.  Simpson    . 
V.  Spiers  . 
Symonds 
V.  Thompson 
Thompson's  Trusts 
Thorington,  Sleech  v. 
Thorneley,  Pierce  v. 
Thornton,  Lunn  v.     , 
Thorpe,  Glynn  v.    . 

?'.  Jackson     . 
Williams  v. 
Thurlow,  Cunynghame  v. 
Tibbett,  Morton  v. 
Tidd  V.  Lister    . 
Tidswell  v.  Angerstein  , 
Tipping  V.  Tipping    . 
Todd  V.  Wilson 
Toft  V.  Stephenson     . 
Tollit  V.  Saunders 
Tolson  V.  Dykes 
Tomlin  v.  JIayor  of  Fordwich 
Topham  v.  Duke  of  Portland 

Duncan  v. 
Topp,  Saunders  v. 
Topping,  Ex  parte 

V.  Keysell    . 
Townroe,  Wightman  v. 
Townsend  v.  Martin     . 
Townshend,  Lord,  v.  Windham 
Travers  v.  Travers     , 
Treasury,  Lords  of  the.  The  Qi 
Trimmer  v.  Danby 
Tripp,  Longman  v. 

Sibree  v. 
TroUope  v.  Linton 
Trotter,  Mackintosh  v. 
Truefit,  Perry  v.     . 
Trueman  v.  Fenton    . 
Trye  i>.  Gloucester,  Corporatio 
Tucker,  Hayter  v. 

In  the  Goods  of 


n  of 


20 
357 
52 
150 
.     108 
81 
297,403 
391 
.     306 
62 
16 
74 
.     280 
239,  241 
.      168 
29 
116,  311 
120 
39 
275 
408, 409 
251 
348 
47 
344 
379 
34 
106 
312 
408 
275 
41 
379 
177 
374 
292 
403 
196 
172 
191 
275 
81 
41 
313 
134 
315 
345 
374 
296 
264 
264 
255 
120 
372 
14 
257 
76 
349 
348 
334 


INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


Tucker  r.  Laing 
Tuer  V.  Turner 
Tupman  r.  Hopkins  . 
Tullett  r.  Arnistrong 
Tupper,  IlamfieUl  r.  . 
Turbv  r.  Bates 
Turnbull,  Godfrey,  r. 

Taylor  r. 
Turner,  Coles  v. 

Kidson  v. 

Tuer  V. 

V.  Turner 

r.  Vaughan 

Ward  (.'.     . 

Wood  I'.    .     . 
Turquand  v.  Moss 
Turton,  Maberley  v.  . 
Tutin.  Fetch  v. 
Tutton,  Holmes  v. 
Twynam,  Coope  v. 
Twyne"s  Case     . 
Tyler  v.  Jones 

V.  Lake     . 
Tj'ndall.  Attorney-General  v 
Tyre.  Williams  v. 


Upshaw,  Skinner  v. 
Usborne,  Jenkyns  v. 


V. 

Valpy,  Dickinson  v. 
Van  V.  Barnett 
Van  Casteel  v.  Booker   . 
Vandenbergh  v.  Spooner 
Vandenl)nrg  i\  Palmer 
Vandeputt,  Wiseman  v. 
Vanderhorst,  Sbewen  v.    . 
Van  Sandau,  Scott  v. 
Vansittarl  v.  Vansittart     . 
Vaughan,  Grant  v. 
Jenkin  v. 
Pemberton  v. 
Turner  v.     . 
Walmsley  v. 
Vawdry,  Cartwright  v. 
Vawser,  Brown  v. 
Veal  V.  Veal       .... 
Venables  v.  East  India  Company 
Vere  v.  Ashby    .... 
Vernon,  Davies  v. 

Lepard  v.     . 

V.  Smith 
Vick,  Edelston  v.        .         .         . 
Viner  ik  Francis     . 
Vulliamy  v.  Noble 


PACE 

.     117 

382 

.     384 

385,  386 

•     .        82 

40 

.     315 

207 

.     127 

76 

.     382 

190,  279 

.       89 

36 

.     327 

128 

.     280 

34 

.     119 

116 

48,  75 

188 

.     384 

349 

.     230 


319 

.     287 

45 

42 

36 

44 

.     405 

187.  191 

.  '  388 

395 

.     298 

91 

.     89 

273 

350 

197 

327 

330 

398 

12,  31 

98 


10 


179 
257 
351 
315 


W. 

W.,  H.  V.         .         . 
Wackerbath,  Mollett  v. 
AVade  r.  Dowling    . 
Wainewright,  Barclay  v 
Wainsf'ord,  Warner  v. 
Waite  V.  Janes 
Jones  V. 
Wakefield  v.  Brown  . 
V.  Ncwbon 
Palmer  v. 
Saunders  v. 
Wales,  Leighton  v.     . 
Walford,  Dyke  v.    . 
Walker  v.  Giles 
i\  Milne 
V.  Nevill 
Pendlebury  v. 
V.  Perkins 
Roberts  v. 
Woodnicston  ?' 
Young  V.   . 
Wall,  Harris  v.  . 
W"allace  v.  Auldjo  . 

V.  Woodgate 
Wallis,  Binnington  v. 
V.  Day    . 
Fordham  v. 
V.  Hodson 
Mason  ?>. 
V.  Taylor 
Walmesley  v.  Milne 
Walmsley  v.  Vaughan 
Walrond  v.  Walrond 
Walsh,  Gale  v. 

V.  Whitcomb 
Walter  v.  Adcock 
V.  Hodge 
V.  Mactlonald 
Walter  Idle's  Case 
Walters,  Bevan  v. 
Walton,  Hitchman  v. 

V.  Lavater 
Wane,  Cumber  v.  . 
Warburton  v.  Hill 

V.  Sandys 
Ward,  Bainton  v. 
V.  Beck 
V.  Byrne 
V.  (Jombe 
Greenberg  v.  . 
Merriman  v. 
V.  Penoyre 
V.  Turner 
i'.  Yates  . 
Warde.  Bristow  v. 
Dudley  v. 
In  re 
Warden  v.  Asliburrier 
Wardroper  v.  Cutfield 
Waring  v.  Lee   . 


PAGE 

387 


INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


XXXIX 


P.VtiE 

PAGE 

Warner  and  Powell's  Arbitration,  Re 

190 

Wetherell  v.  Langston 

.     304 

Mare  v. 

122 

V.  Wilson 

281 

V.  Wainsford 

35*7 

Whale  V.  Booth 

.     339 

Warrington,  Templcton  c. 

277 

Whalley,  Carter  v.          .         .         . 

315 

Warwick,  Countess  of,  Edwards  v.     . 

205 

Wheatcroft  v.  Hickman 

.     316 

March  v. 

128 

Wheatley  y.  Westminster  Brymbo  Cc 

al 

V.  Richardson    . 

308 

and  Coke  Company,  Limited 

.     184 

Waterfall  v.  Pennistone 

50 

Wheeler,  Bushel  v.          .         .         . 

41 

Waterhouse,  Close  v. 

30 

Doe  d.  Stace  v.  . 

.     330 

Waterpark,  Young  v.     . 

272 

Palmer  v.         .         .         . 

275 

Waters  v.  Taylor 

183 

Rex  V.          .         .         . 

.     241 

Waterworth,  Ripley  v.  . 

208 

Wheelhouse  v.  Ladbrooke 

109 

Wathen,  Pclly  v. 
Watmough's  Trusts,  In  re 

31 

Wheelwright,  Robinson  v. 

.     385 

349 

Wheldale  v.  Partridge    . 

287 

Watson  V.  Birch 

401 

Whinery,  Minnit  v.     . 

.     319 

Jessopp  V. 

362 

Whinman  v.  Kynmau     . 

82 

Keightley  v.  . 

304 

Whitaker,  Pain  v.      . 

.        28 

V.  Parker   . 

110 

Whitcomb,  Walsh  v. 

117 

Watt  V.  Watt      . 

384 

White,  Acton  v.          .         .         . 

.     386 

Watts  V.  Girdlestone 

201 

293 

Blake  v.     .         .         . 

116 

V.  Jefferyes 

206 

V.  Grane 

.      281 

V.  Porter 

206 

V.  Spettigue 

396 

Reeves  v. 

127 

Whitehead  v.  Porter 

.      126 

Waugh  V.  Carver 

Edmunds  v.  . 

31G 

319 

Whitfield  v.  Bewitt 

18 

403 

Whitmarsh,  Regina  v. 

.     214 

Way  V.  Bassett 

312 

Whitmore,  Reeve  v. 

35 

Way's  Settlement,  Re 

298 

V.  Smith 

.      191 

Weall  V.  Rice 

346 

Smith  V. 

194 

Weatherby,  Brown  v. 

312 

Whittaker  v.  Howe    . 

.       91 

Webb  V.  Fox 

158 

Whittem  r.  Sawyer 

378 

I'.  Grace 

370 

Whittingham,^In  re  . 

.     390 

V.  Hewitt 

116 

Whittingstall  v.  Grover 

313 

V.  Needham 

356 

Whittle  V.  Henning    . 

.     381 

Teynham,  Lord,  v. 

273 

Whitton,  Squire  v. 

116 

Webb's  Policy,  Re 

408 

Whorwood,  Cooke  v. 

.      192 

Webster  v.  Webster 

315 

Wigg  V-  Shuttleworth    . 

90 

Weguelin,  Rankin  v. 

327 

Wightman  v.  Townroe 

.     315 

Welchman,  In  re    . 

378 

Wilbraliam  v.  Snow 

25 

Welchman  v.  Sturgis 

357 

Wilcox,  Kruges  v.      . 

.       32 

Weld,  Graves  v. 

17 

Wild  V.  Clarkson     . 

108 

Weldon  v.  Gould    . 

30 

Wilding  V.  Richards 

.     299 

Welland,  Balfour  v.   . 

288 

Wildman  v.  Wildman     .         .     . 

200 

Wellesley  v.  Beaufort,  Duke  of 

388 

Wiles  V.  Gresham 

.     285 

Earl  Cowley  v.  . 

18 

Wilkius,  Bristead  v. 

207 

V.  Wellesley 

297 

V.  Bromhead 

40 

Wellington  v.  Mackintosh 

, 

183 

Wilkinson  v.  Adams 

349,  350 

Wells  V.  Horton 

80 

V.  Byers    . 

.      120 

Wennall  v.  Adney 

76 

V.  Candlish    . 

133 

Wensley,  Ex  parte 

134 

V.  Evans  . 

42 

West  V.  Berney 

274 

V.  Henderson 

312 

Hartlepool  Harbor  an 

d  Railway 

Willet  V.  Chambers    . 

.     318 

Company,  Wilson  v 

212 

Williams  v.  Burgess 

101 

Hebdon  v. 

176 

Clarke  v.     . 

.      126 

V.  Reid  . 

409 

Eads  V.    . 

191 

V.  Skip 

* 

36 

V.  Evans 

14 

Westland,  Wiseman  v.   . 

12 

Evans*  I'.  . 

102 

Westmacott,  Harmer  v 

255 

Ex  parte      . 

.     280 

Westmcath,  Marquis  of,  Hindley  v. 

387 

V.  Frost 

236 

Westminster  Brymbo  C6al 

and  Coke 

V.  Hayward 

.     233 

Company,  Limited,  Whe 

itley  V. 

184 

V.  Henshaw 

303 

Weston,  Foster  v. 

114 

V.  Lake 

79 

xl 


INDEX    OF    CASES    CITED    IN    ENGLISH    EDITION. 


PAGE 

PAGE 

Williams,  Manners  v. 

27 

Wood  V.  Taunton   . 

196 

V.  Moor 

77 

V.  Turner 

.     327 

V.  Rawlinson  . 

121 

V.  Wood 

118 

V.  Smith     . 

396 

Woodgate,  Acton  v. 

.     299 

V.  Symonds 

409 

Wallace  v.     . 

29 

V.  Thorpe  . 

.      408 

409 

Woodhead,  Crcsswick  v.    . 

.     330 

V.  Tyro    . 

230 

Woodhouse  v.  Murray    . 

51 

Williamson,  Chamberlain  i'. 

. 

67 

Woodman,  Bowyer  v. 

.     403 

Willing  V.  Baine     . 

303 

Woodmeston  v.  Walker 

385 

Willis  r.  Black  . 

296 

Woods  V.  Footo 

.      127 

V.  De  Castro 

311 

Woolfit,  Cooper  i'. 

17 

V.  Hiscox 

. 

293 

Woolley,  Jackson  v. 

83,312 

Willomatt,  Cooper  v. 

28 

Worrall  v.  Jacob    . 

387 

Willott,  Staniland  v. 

328 

Worrell  v.  Johnson    . 

31 

Willoughby,  Foljambe  v. 

281 

Wortham  v.  Pemberton     . 

.     377 

v'.  Swinton     . 

109 

Wren  v.  Bradley     . 

387 

Willows,  Spirett  v. 

377 

Wright,  Cook  v. 

.        74 

Wills  V.  Hacon  . 

126 

Killbyr.   . 

127 

Wilnier  v.  Carrey  . 

309 

Lomas  v. 

.      110 

Wilmot,  Reed  v.     . 

48 

V.  Maunder 

168 

Wilmshurst  v.  Bowker 

. 

45 

?'.  Morley 

.     379 

Wilson  V.  Brownsmith  . 

345 

Norris  v.  . 

283 

V.  Hood 

32 

Smailes  v.     . 

.      195 

Lucas  V. 

193 

Wrightson  v.  Bywater    . 

191 

V.  Piggott      . 

.      272 

273 

Wj'att,  Roberts  v. 

25 

Todd  V.       . 

292 

Wynne,  Hughes  v. 

108,  405 

V.    West    Hartlepool 

Harbor 

and  Railway  Co.. 

212 

Wetherell  v. 

281 

Y. 

V.  Wilson    . 

293,  387 

388 

Wilton  V.  Colvin 

296 

Wiltshire,  Doran  v. 

288 

Yates,  Bridge  v. 

.     303 

Winch  V.  Keeley 

117 

Dixon  V. 

37,  44,  45 

Winclielsea,  Earl  of,  Deering 

V. 

115 

Sherrington  v. 

.     375 

Windham,  Townsend,  Lord, 

V. 

274 

Ward  V. 

379 

Windle  v.  Andrews 

86 

Yea  V.  Field 

10 

Windsor,  Lincoln  v. 

292 

Yeoman  v.  Bradshaw 

110 

Winn  V.  Ingilby 

IG 

Young  V.  Axtell 

.     315 

Wiunall,  Rudge  v. 

17 

Ex  parte 

54 

Wise  V.  Metcalf 

68 

V.  Fernie 

.     237 

Wiseman  v.  Vandeputt 
V.  Westiand    . 

44 

V.  Fletcher 

134 

12 

Halseham  v.   . 
Lee  V. 

.     318 

Wishart  v.  Fowler 

123 

286 

Witham,  In  the  Goods  of 

331 

V.  Matthews    . 

36 

Witt  V.  Amis 

327 

V.  Walker  . 

192 

Wolverhami)ton  New  Waterw 

orks  Co. 

V.  Waterpark 

.      272 

V.  Hawkesford 

211 

Younge,  Meacher  v. 

280 

Wombwell  v.  Hanrott     . 

272 

273 

Wood  V.  Adcock 

192 

Climie  v. 

14 

Z. 

V.  Dixie    . 

. 

52 

Ex  i)arte 

54 

Zachary  v.  Shepherd 

.      193 

Gomley  «'. 

292 

Zwinger  v.  Samuda 

37 

PRINCIPLES 


LAW  OF  PERSONAL    PROPERTY. 


INTRODUCTORY  CHAPTER. 

OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY. 

The  English  law  of  property  is  divided  into  two  great  branches, — the 
law  of  real  property,  and  the  law  of  personal  property.  The  feudal 
rules,  which  respected  the  holding  and  culture  of  land,  were  the  elements 
of  the  common  law  of  real  property;  the  rules  relating  to  the  disposition 
of  goods  were  the  origin  of  the  law  of  personal  property.  Such  property 
was  anciently  of  little  importance,  and  its  laws  were  consequently  few 
and  simple.  It  did  not,  however,  escape  the  ecclesiastical  influence 
which  spread  so  widely  in  the  middle  ages ;  and  it  has  thence  derived 
that  subjection  to  the  rules  of  the  civil  law  by  which  it  is  characterized 
when  transmitted  by  will  or  distributed  on  intestacy. 

The  division  of  property  into  real  and  personal,  though  now  well 
recognised,  and  constantly  referred  to  even  in  the  acts  of  the  legislature, 
is  comparatively  of  modern  date.  In  ancient  times  property  was  divided 
into  lands,  tenements  and  hereditaments  on  the  one  hand,  and  goods 
'^and  chattels  on  the  other.  These  two  last  terms  appear  to  be  r-^cy-, 
synonymous.  In  process  of  time,  however,  certain  estates  and 
interests  in  land  grew  up,  which  were  unknown  to  the  ancient  feudal 
system,  and  could  not  conveniently  be  subjected  to  its  rules.  Of  these 
the  most  important  were  leases  for  years. ^     Such  interests,  therefore, 

1  A  lease  for  any  number  of  years  is,  in  representatives  of  a    decedent :    7   Sm.  & 

the  common  law,  of  no  higher  dignity  than  Marsh.  479  ;  Gay's  Case,  5  Mass.  419  ;  Rey- 

a  lease   or  term  for  one  year.     Both  are  nold's    Heirs    v.    Com'rs  of  Stark    Co.,   5 

mere  chattels,  and   pass  to  the  personal  Ohio  204  ;  Lessee  of  Bisbee  v.  Hall,  3  Id. 

1 


INTRODUCTORY   CHAPTER. 


■were  classed  among  chattels ;  but  as  they  savoured,  as  it  was  said,  of  the 
realty,  they  acquired  the  name  of  chattels  real.{a)  In  more  modern 
times,  chattels  real  have  been  classed,  with  other  chattels,  within  the 
divi.-^ion  of  personal  proi)erty ;  but  as  chattels  real,  though  personal 
property,  are  in  fact  interests  in  land,  the  laws  respecting  them  have 
been  noticed  in  the  author's  treatise  on  the  Principles  of  the  Law  of  Real 
Property. (ft)  Chattels  real  will  therefore  be  only  incidentally  noticed 
amongst  the  subjects  treated  of  in  the  present  work. 

When  leases  for  years,  and  other  interests  in  land  of  the  like  nature, 
were  admitted  into  the  class  of  chattels  as  chattels  real,  it  became  neces- 
sary that  such  goods  as  had  previously  constituted  the  whole  class,  should 
be  distinguished  from  them  by  some  further  name ;  and  the  title  of  chat- 
tels personal  was  accordingly  applied  to  all  such  chattels  as  did  not  savor 
of  real  estate.  For  this  title,  the  choice  of  two  reasons  is  given  to  the 
reader  by  Sir  Edward  Coke,  "  because,  for  the  most  part,  they  belong 
to  the  person  of  a  man,  or  else  for  that  they  are  to  be  recovered  by  per- 
sonal actions. "(e)'     The  former  of  these  tAvo  reasons  has  been  chosen  by 

(a)  Co.  Litt.  118  b. 

{b)  Principles  of  the  Law  of  Real   Property  315   et  seq.,  1st  ed.;  307,  2d  ed. ;  322, 
4th  ed. ;  333,  5th  ed. ;  350,  6th  ed. ;  357,  7th  ed.;  373,  8th  ed. 
(c)  Co.  Litt.  lis  b. 


499  ;  Brewster  v.  Hill,  1  N.  H.  351.  In 
Massachusetts,  by  the  Revised  Statutes 
of  18G0,  ch.  90,  §  20,  p.  471,  it  is  declared 
that  the  lessees  and  assignees  of  lessees  of 
real  estate,  for  the  term  of  one  hundred 
years  or  more,  in  cases  where  there  is  an 
unexpired  residue  of  fifty  years  or  more  of 
the  term,  shall  be  regarded  as  freeholders, 
and  the  estate  subject  like  freehold  estates 
to  descent,  devise,  dower,  and  execution. 
In  Ohio,  Revised  Statutes,  1860,  ch.  3tJ, 
I  20,  p.  505,  and  ch.  87,  §  1,  p.  1142,  per- 
manent leasehold  estates,  renewable  lor 
ever,  are  subject  to  the  same  law  of  de- 
scent and  distribution  as  estates  in  fee. 
See  Northern  Bank  of  Kentucky  v. 
Roosa,  13  Ohio  334  ;  McLean  v.  Rockey, 
3  McL.  235. 

In  relation  to  terms  to  attend  the  in- 
heritance, although  on  the  death  of  the 
ancestor,  the  legal  title  to  these  vests  in 
his  personal  representatives,  j-et  in  equity, 
they  belong  to  the  heir,  and  are  considered 
part  of  the  inheritance  :  Lovet  v.  Necdham, 


2  Vern.  138  ;  Whitchurch  v.  Whitchurch, 
2  P.  Wms.  236 ;  Villiers  i-.  Villiers,  2  At- 
kins 71  ;  Maundrell  v.  Maundrell,  7  Ves. 
Jr.  577  ;  and  see  post,  p.  259,  note  1. 

1  However  unimportant  any  discussion 
may  be  as  to  the  origin  of  the  term  per- 
sonal, as  ascribed  to  chattels,  it  is  con- 
ceived that  the  reason  of  the  designation 
as  given  by  Blackstone,  is  the  correct  one. 
All  chattels  formerly  known  to  the  law 
were  by  their  nature  movable,  and  a  very 
large  class  of  them,  such  as  debts,  obliga- 
tions, and  the  like,  had  no  tangible  exist- 
ence, and  were  supposed  by  the  law  to 
"  attend  the  person,'  and  are  subject  to 
the  incidental  laws  of  the  domicil  of  the 
owner,  in  the  case  of  intestacy  and  insol- 
vency ;  while  real  estate  being  immovable, 
is  only  governed  by  the  laws  of  the  place 
where  it  is  situated,  independent!}'  of  the 
actual  domicil  of  the  owner.  This  would 
seem  to  be  a  more  probable  reason,  than 
the  mere  fact  of  their  being  the  subject 
of  actions  called  personal. 


OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY.      2 

Mr.  Justice  Blackstone.((^)     But  it  is  submitted  that  the  latter  reason  is 
most  probably  the  true  one.     When  goods  and  *chattels  began  to 
be  called  personal,  they  had  become  too  numerous  and  important    ■-     -• 
to   accompany  the  persons   of  their   owners.     On   the   other  hand,  the 
bringing  and  defending  of  actions  has  always  been  the  most  prevailing 
business  of  lawyers ;  from  the  different  natures  of  actions,  the  nomen- 
clature of  the  law  is  therefore  most  likely  to  have  proceeded.     Now 
actions  were  long  divided  into  three  classes, — real  actions,  personal  ac- 
tions, and  mixed  actions.     Real  actions  were  brought  for  the  recovery  of 
lands,  and,  by  their  aid,  the  real  land  was  restored  to  its  rightful  owner. 
Mixed  actions,  as   their   name  imports,  were  real   and   personal  mixed 
together.     Personal  actions  were  brought  in  respect  of  goods  for  which, 
as  they  are  in  their  nature   destructible,  nothing  but  pecuniary  damages 
could  with   certainty  be  recovered  from   the  person  against  whom   the 
action  was  brought.     Accordingly,  by  the  ancient  law  of  England,  there 
never  were  more  than  two  kinds  of  personal  actions  in  which  there  was  a 
possibility  of  recovering,  by  the  judgment  of  the  Court,  the  identical 
goods  in  respect  of  which  the  action  was  brought.     One  of  these  was  the 
action  of  detinue^  where  goods,  having  come  into  a  man's  possession, 
were  unlawfully  detained  by  him  ;  in  which  case,  however,  the  judgment 
was  merely  conditional,  that  the  plaintiff  recover  the  said  goods,  or  [if 
they  could  not  he  had)  their  respective  values,  and  also  the  damages  for 
detaining  them.(g)     The  other  was  the  action  of  replevin,  brought  for 
goods  which  had  been  unlawfully  distrained ;  but  in  this  case  the  goods 
were  never  beyond  the  custody  of  the  sheriff,  who  is  an  officer  of  the  law, 
and  their  safe  return  could  therefore  be  secured. (/)^     Goods  therefore 

(d)  2  Black.  Com.  16,  384;  3  Black.  Com.  144. 

(e)  3  Black.  Com.  152.  (/)  Ibid.  146. 

1  In  the  United  States  generally,  the  ac-  In  New  York,  replevin  lies  for  any  Por- 
tion of  replevin  lies,  wherever  one  claims  tious  taking  of  goods;  Pangbura  v.  Par- 
goods  in  the  possession  of  another ;  and  on  tridge,  7  Johns.  140;  Gardner  v.  Camp- 
a  claim  of  property,  the  defendant  can  re-  bell,  15  Id.  402;  Mills  v.  Martin,  19  Id.  3]  ; 
tain  the  goods  if  he  gives  security  to  pro-  Clark  v.  Skinner,  20  Id.  467  ;  Judd  v. 
duce  them,  and,  where  the  property  is  so  Fox,  9  Cowen  259 ;  Dodworth  v.  Jones,  4 
retained,  the  plaintiff's  right  is  turned  into  Duer  20 1. 

a  chose  in  action,  and  his  right  to  the  pro-  But  it  will  not  lie  for  illegal  detention  of 

perty  absolutely  gone  :  Fishery.  Whoolery,  property,  where  the  party  conies  to  posses- 

25  Penn.   St.    197  ;   and  see  also,  Pugh  v.  sion  by  delivery  from  a  person    having  a 

Calloway,    10   Ohio   N    S.  488;   but  even  special  property  in  the  goods :   Marshall  t'. 

in  England  it  was  not  formerly  the  case,  Davis,  1  Wend.  109. 

as   is   stated   in   the   text,  that  the   goods  As  against  wrongdoers  and   trespassers, 

were    in    the    custody    of    the    sheriif:     1  it  has  been  decided  in  North  Carolina,  that 

Saund.  (by  Williams)  347   a,  note  2.     See  a  paramount  right  of  property  is  not  ne- 

also  12  Mass.  180,  note.  cessary  to  support  the  action,  but  a  naked 


3 


INTRODUCTORY   CHAPTER. 


seem  to  have  been  called  personal,  because  the  remedy  for  their  abstrac- 
tion was  against  the  person  who  had  taken  them  away,  or  because,  in  the 


possession,  or  a  right  of  possession  coupled 
with  the  beneficial  interest,  will  be  suffi- 
cient:  Freshwater  v.  Nichols,  7  Jones's 
Law  251. 

In  Pennsylvania,  wherever  one  man 
claims  goods  in  the  possession  of  another, 
replevin  will  lie:  Weaver  v.  Laurence,  1 
Dall.  157 ;  Shearick  v.  Ruber,  G  Binn. 
3;  Stougbton  v.  Rappalo,  3  S.  &  R. 
562 ;  Snyder  v.  Vaux,  2  Rawle  428 ; 
Pearce  v.  Humphries,  14  S.  &  R.  25; 
Bower  v.  Tallman,  5  W.  &  S.  5G1  ;  Har- 
lan V.  Harlan,  15  Penn.  St.  513;  Boyle 
V.  Rankin,  22  Id.  168;  but  see  Bonsall  v. 
Comly,  44  Id.  442.  It  is  effectual  for  the 
delivery  of  personal  property  only  ;  Rob- 
erts V.  Dauphin  Deposit  Bank,  19  Id.  71; 
and  it  will  not  lie  by  one,  claiming  land 
against  another  in  the  actual  adverse  pos- 
session thereof,  under  claim  of  title  for 
fixtures,  aliter,  where  there  is  no  claim  of 
adverse  title:  Mather  v.  Trin.  Church,  3 
S.  k  R.  509;  Bowen  v.  Caldwell,  10  Id. 
114;  Harlan  v.  Harlan,  15  Penn.  St. 
513  ;  and  see  Green  v.  Iron  Co.,  62  Penn. 
St.  97. 

Replevin  will  not  lie  by  one  joint  owner 
of  a  chattel,  but  the  objection  can  only  be 
taken  by  a  plea  in  abatement,  where  he 
sues  for  the  whole :  Reinheimer  v.  Hem- 
ingway. 35  Penn.  St.  432.  If  he  sues 
for  a  moiety,  the  court  will  abate  the 
writ,  ex  officio :  D'Wolf  v.  Harris,  4  Mason 
515.  And  by  the  same  case  it  was  held, 
that  an  assignment  of  goods  at  sea,  and 
their  proceeds,  if  bona  fide,  is  sufficient  to 
pass  the  legal  title  to  the  goods,  and  also 
to  the  proceeds,  so  that  replevin  will  lie 
for  the  latter.  But  in  case  of  an  ex- 
press contract  for  delivery,  one  partner 
may  bring  this  action  against  the  other : 
Kahle  v.  Sneed,  59  Penn.  St.  388. 

If  trees  cut  down  be  converted  by  de- 
fendant into  rails  and  posts,  this  is  not 
such  an  alteration  of  the  property  as  will 
prevent  recovery  in  replevin:  Snyder  v. 
Vaux,  2  Rawle  423;  and  see  Lee  v.  Gould, 
47  Penn.  St.  308. 

In  Massachusetts  it  has  been  held,  that 


as  a  general  principle,  the  owner  of  a  chat- 
tel may  take  it  by  replevin  from  any  per- 
son whose  possession  is  unlawful,  unless 
it  be  in  the  custody  of  the  law,  or  unless 
it  had  been  taken  by  replevin  from  him  by 
the  party  in  possession  :  Ilsley  v.  Stubbs, 
5  Mass.  280.  In  order  to  maintain  it, 
the  plaintiff  must  have  the  right  of  pro- 
perty and  of  possession,  at  the  time  of 
taking  or  suing  out  his  writ ;  Wheeler 
V.  Train,  3  Pick.  255 ;  Walcot  v.  Pora- 
eroy,  2  Id.  121.  But  where  goods  which 
had  been  leased  by  the  owner,  were 
attached  as  the  property  of  the  lessee 
while  they  were  in  his  possession  under 
the  lease,  and  the  owner  replevied  them 
from  the  oflicer,  and  before  judgment  the 
lease  expired,  the  defendant  had  judgment 
for  costs  only,  and  not  for  a  return : 
Wheeler  v.  Train,  3  Pick.  255.  If 
goods  be  obtained  by  means  of  false  and 
fraudulent  pretences,  the  owner  of  the 
goods  may  reclaim  them  by  this  action : 
Buffington  v.  Gerrish,  15  Mass.  156.  So 
replevin  will  lie  for  goods  which  are  un- 
lawfully detained,  though  the  taking  be 
lawful :  Badger  v.  Phinney,  15  ^lass. 
359  ;  Baker  v.  Pales,  16  Id.  147  ;  Marston  v. 
Baldwin,  17  Id.  606.  IConfra,  Meany 
V.  Head,  1  Mason  319.]  And  when  goods 
are  delivered  in  pursuance  of  a  condit- 
ional sale,  and  the  condition  is  not  per- 
formed, the  vendor  may  reclaim  the  goods 
by  this  action:  Marston  v.  Baldwin,  17 
Mass.  606. 

But  if  the  property  is  not  in  the  plain- 
tiff at  the  time  of  the  taking,  or  if  he  then 
had  no  right  to  the  possession  against  the 
defendant,  replevin  cannot  be  maintained, 
unless  a  demand  has  been  made  upon  the 
defendant  by  the  plaintiff  for  the  chattels 
since  he  acquired  the  property  in  them : 
Gates  V.  Gates,  15  Mass.  310.  Such  a 
demand,  however,  will  be  sufficient  if 
made  on  the  day  of  the  date  of  the  writ, 
before' ii  is  served,  although  after  its  de- 
livery to  an  officer:  Badger  v.  Phinney,  15 
Mass.  359. 

In   Maine,   either  a   general   or  special 


OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY.      6 

words  of  Lord  *Coke,  tliey  were  to  be  recovered  by  personal    ^,^^-. 
actions. (^)     By  recent  statutes, (/t)  however,  provision  has  been 

(ff)   See  Principles  of  the  Law  of  Real  Propert}'  7. 

(A)  Stats.  11  &  18  Vict.  c.  125,  s.  78  ;   19  &  20  Vict.  c.  97,  s.  2. 


ownership  of  property  will  sustain  the  ac- 
tion :  School  Dist.  No.  5  r.  Lord,  44  Maine 
374;  and  it  may  be  maintained  for 
goods  unlawfully  detained,  though  the 
taking  was  lawful :  Seaver  v.  Dingley,  4 
Greenleaf  306  ;  but  there  mu^t  be  a 
demand  for  the  article  and  refusal  to  de- 
liver in  this  case,  or  other  evidence  of 
conversion  :  Newman  v.  Jeune,  47  Maine 
520. 

The  mere  right  of  possession  is  suffi- 
cient to  sustain  this  action  in  the  State  of 
Vermont:  Sprague  v.  Clark,  41  Vt.  6. 

In  New  Jersey,  where  goods  are  so 
taken  as  to  entitle  the  owner  to  an  action 
of  trespass,  replevin  can  be  maintained: 
Bruen  v.  Ogden,  6  Halst.  370;  or  for 
goods  taken  and  unlawfully  detained : 
Nixon's  Dig.,  ed.  1868,  p.  810;  but  there 
must  be  both  the  unlawful  taking  and  the 
unlawful  detention  :  Harwood  v.  Smeth- 
urst,  5  Dutch.  19.5.  And  it  will  lie 
for  such  articles  as  "  mills,  barns,  steam- 
engines,  offices,  and  sheds  :"  Breasley  v. 
Cox,  4  Zabr.  287. 

In  Ohio,  replevin  lies  in  all  cases  unless 
excepted  by  statute :  Stone  v.  Wilson, 
Wright  159. 

In  Indiana,  demand  may  be  necessary 
where  the  defendant  has  goods  by  license 
of  the  plaintiff;  but  where  there  is  a 
wrongful  possession  of  goods,  as  where 
they  were  obtained  by  fraud,  force,  or 
otherwise  without  the  owner's  consent,  no 
demand  need  be  made :  8  Blackf.  244. 
Replevin  cannot,  however,  be  maintained 
against  a  purchaser  in  good  faith  from  a 
wrongful  taker:  Conner  v.  Comstock,  17 
Ind.  90. 

In  Delaware,  it  may  be  used  wherever 
one  claims  personal  property  in  possession 
of  another:  Clark  v.  Adair,  3  Har.  113. 
A  purchaser  at  sheriff's  sale  may  maintain 
replevin  after  demand  and  refusal:  16 
Id.  62. 


In  Maryland,  replevin  lies  in  all  cases 
where  the  plaintiff  seeks  to  try  the  title  to 
personal  property  and  recover  its  posses- 
sion :  Brooke  v.  Berry,  1  Gill  163. 

In  Kentucky,  it  will  not  lie  to  recover 
godds  held  adversely  to  plaintiff:  Dillon 
V.  Wright,  J.  J.  Marsh.  10;  nor  where 
the  legal  title  is  not  in  the  plaintiff: 
Daniel  v.  Daniel,  6  B.  Mon.  231. 

In  Missouri,  replevin  will  lie  for  goods 
unlawfully  taken  or  detained  when  tres- 
pass will :.  Skinner  v.  Stouse,  4  Mo.  93; 
Crocker  v.  Man,  3  Mo.  345,  472  ;  but 
the  plaintiff  must  have  the  title  to  the 
property  or  the  right  of  possession :  Pil- 
kington  v.  Trigg,  28  Mo.  95. 

In  Tennessee,  to  support  replevin,  the 
plaintiff  must  show  right  of  possession  as 
against  the  defendant:  Bogard  v.  Jones, 
9  Hump.  739 ;  Bradley  v.  Mitchell,  1 
Smith  346 ;  Shaddon  v.  Knott,  2  Swan 
358. 

In  Arkansas,  under  the  Revised  Statutes 
(same  as  that  of  New  York  on  replevin), 
replevin  may  be  maintained  for  an  unlaw- 
ful taking  or  detention  of  a  chattel,  but 
the  plaintiff  must  show  title  :  Beebe  v.  De 
Baun,  3  Eng.  566;  Rev.  Stat.  695;  Cox 
V.  Marrow,  14  Ark.  603.  The  owner  of 
property  may  bring  replevin  against  a 
purchaser  where  his  property  has  been 
sold  under  execution  against  a  third  per- 
son :  3  Eng.  83.  As  in  New  York,  pos- 
session of  chattels  and  actual  wrongful 
taking  by  defendant  will  support  replevin. 
It  may  be  brought  wherever  trespass  de 
bonis  asportatis  will  lie  :  Tra'pnall  v.  Hat- 
tier,  1  Eng.  21. 

In  Virginia,  replevin  is  confined  by  sta- 
tute (1823)  to  cases  of  distress  for  rent: 
1  Robinson's  Pr.  408. 

As  also  in  Mississippi:  Wheelock  v. 
Cozzens,  6  Howard  279 ;  and  to  main- 
tain the  action  under  the  statute  of  1842, 
it  is  necessary   that  the  plaintiff  should 


4  INTRODUCTORY   CHAPTER. 

made  for  enforcing  the  <lolivery  of  goods,  in  actions  for  their  detention  or 
for  breach  of  contract  to  deliver  them  for  a  price  in  money ;  and  if  they 
cannot  be  found,  all  the  lands  and  chattels  of  the  defendant  may  be  dis- 
trained till  they  are  delivered. 

Chattels  personal,  then,  are  the  subjects  of  the  present  treatise.  In 
ancient  times  they  consisted  entirely  of  movable  goods,  visible  and  tan- 
gible in  their  nature,  and  in  the  possession  either  of  the  owner  or  of  some 
other  person  on  his  behalf.  Nothing  of  an  incorporeal  nature  was 
anciently  comprehended  within  the  class  of  chattels  personal.  In  this 
respect  the  law  of  personal  property  strikingly  differs  from  that  of  real 
property,  in  which,  from  the  earliest  times,  incorporeal  hereditaments 
occupied  a  conspicuous  place.  But  although  there  was  formerly  no  such 
thing  as  an  incorporeal  chattel  personal,  there  existed  not  unfrequently 
a  right  of  action,  or  the  liberty  of  proceeding  in  the  courts  of  law  either 
to  recover  pecuniary  damages  for  the  infliction  of  a  wrong  or  the  non- 
performance of  a  contract,  or  else  to  procure  the  payment  of  money  due. 
Such  a  right  was  called,  in  the  Norman  French  of  our  early  lawyers,  a 
chose  or  thing  in  action,  Avhilst  movable  goods  were  denominated  choses 
in  possession.  Choses  in  action,  though  valuable  rights,  had  not  in 
early  times  the  ordinary  incident  of  property,  namely,  the  capability  of 
being  transferred ;'  for,  to  permit  a  transfer  of  such  a  right  was,  in  the 

have  the  right  to  immediate  possession,  as  by  one   having  the  right    of  possession  : 

at  common  law:    27  Miss.  108.  Lazard  v.  Wheeler,  22  Cal.  132. 

The  writ  lies  in  Michigan  and  Illinois  ^  A  right  of  action  for  a  tort  is  not  as- 
hy statute,  for  goods  wrongfully  taken  or  signahle :  Gardner  v.  Adam,  12  Wend, 
detained:  2  Compiled  Laws  of  Michigan  297  ;  Com.  v.  Tuqua,  3  Litt.  41  ;  Comegys 
(1857),  p.  1330;  Grose's  Statutes  of  Illi-  v.  Vasse,  1  Peters  123;  People  ».  Tioga, 
nois  (1869),  p.  569.  19  Wend.  73;  Oliver  v.  Walsh,  6  Cal. 
In  Iowa,  if  the  plaintiff  is  not  entitled  258;  and  this  is  true  even  after  verdict : 
to  present  possession,  he  cannot  prevail:  Brooks  v.  Hanford,  15  Abbott's  Pr. 
Muricnthal  v.  Shafer,  6  Clarke  223 ;  342.  But  a  cause  of  action,  to  recover 
and  if  the  possession  of  the  defendant  money  which  plaintiff  had  been  induced 
was  rightful  at  its  inception,  the  plain-  to  pay  to  defendant,  by  means  of  false 
tiff  must  make  a  demand  before  bring-  representations  made  by  the  latter,  is  as- 
ing  his  action:  Gilchrist  v.  Moore,  7  signable :  Byxbie  v.  Wood,  24  N.  Y.  607; 
Clarke  9.  and   by  a  statute  of  1858  of  the   State    of 

In  Rhode  Island,  the  action  of  replevin  New  York,  the  right  of  action  which   one 

is  maintainable  by  virtue   of  the   statute  has,  who    has   been   induced   by   fraud   to 

"  regulating  proceedings  in  replevin,"  for  execute   a   conveyence   and   part  with  the 

goods  and   chattels  unlawfully   detained,  possession  of  real  estate,  may  be  assigned  : 

though   not  unlawfully  taken,  as  well  as  McMahon   v.   Allen,  34   Barb.    275.      And 

for  goods  and  chattels  unlawfully  taken  :  see  Weir  v.  Davenport,  11  Iowa  49. 
AVaterman  v.  Matteson,  4  R.  I.  539.  The  general   rule  is,  that  personal  torts 

It  may  be  brought  in  California  where  which  die  with  the  party,  and  do  not  sur- 

personal  property  is  wrongfully  detained,  vive  to  personal  representatives,  are  in- 


OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY. 


simplicity  of  the  times,  thouglit  to  be  too  great  an  encouragement  to 


litigation  ;(z)  and  the  attempt  to  make  such  a  transfer  involved  the 


[*5] 


guilt  of  7naintenance  or  the  *maintaining  of  another  person  in  his 
suit.  It  was  impossible,  however,  that  this  simple  state  of  things  should 
long  continue.  Within  the  class  of  choses  in  action  was  comprised  a 
right  of  growing  importance,  namely,  that  of  suing  for  money  due,  which 
right  is  all  that  constitutes  a  debt.  That  a  debt  should  be  incapable  of 
transfer  was  obviously  highly  inconvenient  in  commercial  transactions ; 
and  in  early  times  the  custom  of  merchants  rendered  debts  secured  by 
bills  of  exchange  assignable  by  endorsement  and  delivery  of  the  bills. 


(t)  10  Rep.  48  a. 


capable  of  passing  by  assignment:  Come- 
gys  V.  Vasse,  1  Peters  193 ;  North  v. 
Turner,  9  S.  &  R.  244;  Sommers  v. 
Wild,  4  Id.  19;  O'Donnell  v.  Seybert,  13 
Id  54  ;  Freeman  v.  Newton,  3  E.  D.  Smith 
246  ;  Grant  v.  Ludlow,  8  Ohio  N.  S. 
1;  and  the  converse  has  been  held  true: 
Sears  v.  Conover,  34  Barb.  330  ;  Gould 
Gould,  36  Id.  270.  It  seems  however  in 
New  York,  that  whether  a  cause  of  action 
is  assignable  depends  mainly  upon  the 
question  whether  it  would  survive  :  Den- 
ning V.  Fay,  38  Barb.  18.  And  in  that 
state  it  has  been  held,  that  the  right  of  a 
mother  in  the  damages  given  by  the  statute 
of  1847,  for  the  death  of  her  son,  is  cap- 
able of  assignment:  Quin  v.  Moore,  15  N- 
Y.  432. 

But  other  choses  in  action  may  be  as- 
signed in  equity:  Dix  v.  Cobb,  4  Mass. 
511;  Parker  v.  Grout,  11  Id.  157,  note; 
Wheeler  v.  Wheeler,  9  Cowen  34;  East- 
man V.  Wright,  6  Pick.  316;  Welsh  v. 
Mandeville,  1  Wheat.  236;  Brackett  v. 
Blake,  7  Mete.  335  ;  Fletcher  v.  Pratt,  7 
Blackf.  522 ;  Powell  v.  Powell,  10  Ala. 
900 ;  Wooden  v.  Butler,  10  Miss.  716  ; 
Blier  v.  Pierce,  20  Vt.  25;  26  Maine 
448 ;  Merriweather  v.  Herran,  8  B.  Mon. 
162;  29  Maine  9;  Kerr  v.  Day,  2  Har. 
212  ;  Anderson  v.  De  Soer,  6  Gratt.  363; 
Ensign  v.  Kellogg,  4.  Pick.  1 ;  Champion 
V.  Brewer,  6  Johns.  Chan.  398  ;  Lowry 
V.  Tew,  3  Barb.  Ch.  407;  Mitchell  v 
Manufacturing    Co.,    2    Story   660 ;    Cal- 


kins V.  Lockwood,  14  Conn.  226 ;  Can- 
naday  v.  Shepard,  2  Jones  L.  224  ;  and 
an  oral  transfer,  with  notice  from  the 
assignee  to  the  debtor,  has  been  held 
sufficient:  Noyes  v.  Brown,  33  Vt.  431; 
the  assignee  takes  subject  to. the  equities 
of  him  who  issued  the  security  assigned  ; 
Bush  V.  Lathrop,  22  N.  Y.  535 ;  Robert 
V.  Carter,  24  How.  Pr.  44;  FauU  v.  Tins- 
man,  36  Penn.  St.  108;  Smith  v.  Rogers, 
14  Ind.  224;  Eldred  v.  Hazlett,  33  Penn. 
St.  307;  Warner  v.  Whilliaker,  6  Mich. 
133;  Cornish  v.  Bryan,  2  Stockt.  146; 
Horstman  v.  Gerker,  49  Penn.  St.  281. 

A  contingent  debt  may  be  assigned  in 
equity:  Crocker  v.  Whitney,  10  Mass. 
316  ;  and  a  judgment  and  execution  :  Dunn 
V.  Snell,  15  Mass.  481  ;  Allen  v.  Hol- 
den,  9  Id.  133  ;  Brown  v.  Maine  Bk.,  11  Id. 
153;  Pearson  v.  Talbot,  4  Litt.  435; 
Vanhouten  v.  Reilly,  6  Sm.  &  Marsh.  440 ; 
FauU  V.  Tinsman,  36  Penn.  St.  108 ; 
McDonald  v.  McDonald,  5  Jones's  Eq.  211. 
To  make  an  assignment  valid  at  law, 
that  which  is  the  subject  of  it  must  have 
an  existence  actual  or  potential,  at  the 
time  of  assignment:  Mitchell  r.  Winslow, 
2  Story  630. 

An  interest  created  by  a  pledge  of  per- 
sonal property  can  be  assigned  :  Russell  v. 
Fillmore,  15  Vt.  130. 

The  legal  interest  in  a  judgment  is  not 
assignable  either  by  statute  or  comnon 
law:  Richardville  V.  Cummins,  5  Blackf. 
48. 


5  INTRODUCTORY   CHAPTER. 

But  chosos  in  action,  not  so  secured,  could  only  be  sued  fol'  by  the  origi- 
nal creditor,  or  the  person  who  first  had  the  right  of  action.  In  process 
of  time,  however,  an  indirect  method  of  assignment  was  discovered,  the 
assignee  being  empowered  to  sue  in  the  name  of  the  assignor ;  and  in  the 
reign  of  Henry  VII.  it  was  determined  that  a  "  chose  in  action  may  be 
assigned  over  for  lawful  cause  as  a  just  debt,  but  not  for  maintenance, 
and  that  where  a  man  is  indebted  to  me  in  20/.,  and  another  owes  him 
20/,  by  bond,  he  may  assign  this  bond  and  debt  to  me  in  satisfaction,  and 
I  may  justify  for  suing  it  in  the  name  of  the  other  at  my  own 
costs."(y)^     Choses  in  action,  having  now  become  assignable,  became  an 

(y)  Bro.  Abr.  tit.  Chose  in  Action,  pi.  3,  15  Hen.  VII.  c.  2. 


^  The  assignee  of  a  chose  in  action,  has 
an  equitable  right,  enforcable  at  law,  in 
the  assignor's  name  :  Dix  v.  Cobb,  4  Mass. 
511;  Parker  v.  Grout,  11  Id.  157,  note; 
Wheeler  v.  Wheeler,  9  Cowen  34 ; 
Eastman  v.  Wright,  6  Pick.  316  ;  Welch 
V.  Manderville,  1  Wheat.  236 ;  Hendrick 
V.  Glover,  Geo.  Decis.  part  1,  63  ;  Marcune 
V.  Hereford,  8  Dana  1 ;  Dunklin  v. 
Wilkins,  5   Ala.    109 ;    Rawson  v.   Jones, 

1  Scam.  291 ;  Van  Houten  v.  Reily,  6 
Sm.  &  M.  440 ;  Broughten  v.  Badgett,  1 
Kelly  75;  Sims  v.  Radcliffe,  3  Rich. 
287  ;  Pollard  v.  Somerset,  Mut.  Fire  Ins. 
Co.,  42  Maine  221;  Hooker  v.  Eagle  Bk., 
30  N.  Y.  83.  But  the  assignee  of  a  bond 
cannot,  at  common  law,  sue  thereon  in 
his  own  name:  Skinner  v.  Somers,  14 
Mass.  107 ;  Smock  v.  Taylor,  Coxe  177  ; 
Sheppard  v.  Stites,  2  Halst.  94 ;  Sayre 
V.  Lucas,  2  Stew.  259 ;  Flanagan  v. 
Camden  Mutual  Insurance  Co.,  1  Dutch. 
506;  and  a  creditor  cannot  by  assign- 
ing portions  of  his  claim  to  different  per- 
sons, give  them  separate  rights  of  action : 
The  Hull  of  a  new  Ship,  Dav.  199.    • 

The  bearer  of  a  negotiable  promissory 
note  may  sue  on  it  in  his  own  name : 
Mauran  v.  Lamb,  7  Cowen  174;  Pearce 
V.  Austin,  4  Whart.  489 ;  Barbarin  v. 
Daniels,  7  La.  481  ;  Denton  v.  Duplesis, 
12  Id.  92  ;  Hill  v.  Holmes,  Id.  96  ;  Story  on 
Prom.  Notes,  465  ;  Rankin  v.  Woodworth, 

2  Watts  134;  Leidy  v.  Tammany,  9  Id. 
353. 

If  a  negotiable  note  be  assigned  and  de- 
livered, for  a  valuable  consideration,  with- 


out endorsement,  the  title  passes,  and  the 
assignee  may  recover  in  the  name  of  the 
payee :  Jones  v.  Willett,  3  Mass.  304. 
But  a  certificate  of  deposit  payable  to  the 
depositor,  or  order,  in  currency,  is  not  a 
negotiable  instrument,  and  the  endorsee 
thereof  cannot  maintain  an  action  upon  it 
in  his  own  name  :  Loudon,  &c.  Soc.  v. 
Hagerstown,  &c.  Bk.,  36  Penn.  St.  498. 

And  "  the  holder  of  bonds  issued  by  a 
corporation,  payable  to  bearer,  may  main- 
tain an  action  on  them  in  his  own  name. 
Such  bonds  are  not  strictly  negotiable 
under  the  law  merchant,  as  are  promissory 
notes  and  bills  of  exchange.  They  are, 
however,  instruments  of  a  peculiar  charac- 
ter, and  being  expressly  designed  to  be 
passed  from  hand  to  hand,  and  by  com- 
mon usage  actually  so  transferred,  are 
capable  of  passing  by  delivery  so  as  to 
enable  the  holder  to  maintain  an  action 
on  them  in  his  own  name.  Possession  is 
prima  facie  evidence  of  ownership  :"  Carr 
V.  Le  Fevre,  27  Penn.  St.  418.  And  see 
also  on  the  same  subject :  Gi'egory  v 
Dozier,  6  Jones  L.  4  ;  Morris  Canal  Co. 
V.  Fisher,  1  Stockt.  667;  McCoy  v.  The 
County,  7  Am.  L.  Reg.  193 ;  Mercer  Co. 
V.  Hacket,  1  Wall.  U.  S.  83;  Gelpeke 
V.  Dubuque,  Id.  175;  Meyer  v.  Musca- 
tine, Id.  384 ;  Murray  v.  Lardner,  2  Id. 
110;  Co.  of  Beaver  t;.  Armstrong,  8  Penn. 
St.  63.  Where  bonds  were  issued  by 
a  railway  company  in  blank,  it  was  held 
by  the  Supreme  Court  of  the  United 
States  to  be  the  intention  of  the  com- 
pany to  make  the  bonds  negotiable,  and 


OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY. 


important  kind  of  personal  property  ;    and  their  importance  was  in- 
creased by  an  act  of  the  following  reign, (A;)  whereby  the  taking  of  in- 

(k)  Stat.  31  Hen.  VIII.  c.  9. 


payable  to  the  holder  as  bearer,  and  that 
the  holder  might  fill  up  the  blank  with 
his  own  name,  or  make  them  payable 
to  himself  or  bearer,  or  order.  White  v. 
Vt.  &  Mass.  R.  R.  Co.,  21  How.   575. 

A  right  to  property  held  adversely,  or  a 
right  growing  out  of  an  executory  con- 
tract, is  unsusceptible  of  legal  assign- 
ment :  Greely  v.  Willcocks,  2  Johns.  1  ; 
Flint,  &c.,  R.  R.  Co.  v.  Dewey,  14  Mich. 
477 ;  Kendall  v.  United  States,  7  Wall. 
U.  S.  113. 

An  obligation  of  record,  or  under  seal, 
may  be  equitably  assigned  by  a  writing, 
unsealed :  Morange  v.  Edwards,  1  E.  D. 
Smith  414;  Dunn  v.  Swell,  15  Mass. 
485 ;  Dawson  v.  Coles,  16  Johns.  51  ; 
or  by  parol :  Ford  v.  Stuart,  19  Johns. 
342  ;  Jones  v.  Witter,  13  Mass.  304  ;  Licey 
V.  Licey,  7  Penn.  St.  251 ;  Sexton  v.  Fleet, 
2  Hilt.  477. 

In  New  York,  an  assignee  of  a  right  of 
action,  may  by  statute  maintain  an  action 
therefor  in  his  own  name ;  and  the  same  is 
true  in  Massachusetts  :  Currier  v.  Howard, 
14  Gray  511;  Butler  v.  N.  Y.  &  Erie 
R.  R.  Co.,  22  Barb.  110;  but  in  New 
York  this  has  been  held  only  where  the 
right  was  assignable  at  law  or  in  equity, 
before  the  code  was  adopted  ;  and  hence  it 
was  there  decided,  that  the  assignee  of  a 
claim  for  damages  for  personal  injuries, 
cannot  maintain  an  action  in  his  own 
name :  Purple  v.  Hudson  River  R.  R.  Co., 
4  Duer  74. 

In  Pennsylvania,  by  an  act  of  May  28, 
1817,  the  assignees  of  bonds,  specialties, 
and  notes,  can  sue  in  their  own  names,  by 
statute ;  but  such  assignments  must  be 
under  hand  and  seal,  and  executed  in  the 
presence  of  two  or  more  credible  wit- 
nesses:  Purd.  Dig.  edit.  1861,  p.  112,  |§  3, 
7  ;  and  this  is  true  also  in  the  State  of 
Delaware  :  Kinniken  v.  Dulaney,  5  Harring. 
384. 

In  New  Jersey,  the  assignee  of  a  bond 
may  maintain  an  action  thereon  in  his  own 


name :  Bennington  Iron  Co.  v.  Rutherford, 
Harr.  158.  And  the  assignment  need 
not  be  in  writing:  Allen  v.  Pancoast,  1 
Spencer  68 ;  but  in  all  other  choses  in 
action,  except  for  the  payment  of  money, 
the  assignee  cannot  maintain  an  action  in 
his  own  name :  Ruckman  v.  Cutwater,  4 
Dutch.  571. 

In  Missouri,  by  the  Rev.  C,  1855,  p.  319, 
the  assignees  of  bonds  may  sue  in  their 
own  names,  but  the  assignment  must  be  in 
writing ;  and  the  chose  assigned  must  be 
negotiable  as  prescribed  by  the  act:  Laba- 
dies  Exec.  v.  Choteau,  37  Mo.  413  ; 
Miller  v.  Paulsell,  8  Id.  355;  Smith  v. 
Schebel,  19  Id.  140. 

In  Mississippi,  the  statute  making  bonds, 
bills  single,  &c.,  assignable  by  endorse- 
ment, so  that  the  assignee  may  maintain 
an  action  in  his  own  name,  does  not  re- 
quire the  endorsement  to  be  under  seal : 
3  Sm.  &  M.  647. 

In  Arkansas  (under  the  statute)  an  ac- 
tion upon  an  assigned  bond  must  be  brought 
in  the  name  of  the  assignee :  Block  v. 
Walker,  2  Pike  4 ;  Gamblin  v.  Walker, 
1  Id.  220. 

In  South  Carolina,  the  assignee  of  a 
bond  is  not  compelled  to  sue  in  his  own 
name,  under  the  statute :  Coachman  v. 
Hunt,  2  Rich.  450. 

In  Ohio,  the  holder  of  bonds  payable  to 
order  or  bCarer,  can  sue  in  his  own  name : 
Logue  V.  Smith,  Wright  10. 

In  Illinois,  the  legal  interest  in  a  bond 
can  only  be  transferred  by  endorsement  in 
writing,  and  an  action  can  only  be  main- 
tained in  the  name  of  the  person  who  has 
such  legal  interest:  Chadsey  v.  Lewis,  1 
Gilman  153. 

In  Indiana,  under  the  new  code,  all  as- 
signees take  precisely  the  same  rights 
which  they  would  have  taken  before,  with 
this  addition,  that  they  can  have  their 
remedy  in  their  own  name:  Pattersons. 
Crawford,  12  Ind.  241. 

And  by  the  law  of  Georgia,  a  bond  paya- 


O  •  INTRODUCTORY   CHAPTER. 

terest  for  money,  which  had  previously  been  unhiwful,  was  rendered  legal 
to  a  limited  extent.  Loans  and  mortgages  soon  became  common,  forming 
a  kind  of  incorporeal  personal  property  unknown  to  the  ancient  law.  In 
the  reign  of  Queen  Anne,  promissory  notes  were  rendered,  by  act  of 
parliament,  a«>signable  by  endorsement  and  delivery,  in  the  same  manner 
as  inland  bills  of  exchange.(/)  More  recent  statutes  have  enabled 
r*^-|  *the  endorsee  of  a  bill  of  lading,(w)^  and  the  assignee  of  a  life(r?) 
or  sea(o)  policy  of  insurance,  to  sue  in  his  own  name.  But  other 
choses  in  action  continue  to  this  day  assignable  at  law  only  by  empower- 
ing the  assignee  to  sue  in  the  name  of  the  assignor. 

In  addition  to  the  mass  of  incorporeal  personal  property,  which  now 
exists  in  the  form  of  choses  in  action  recoverable  by  action  at  law,  there 
exist  also  equitable  choses  in  action,  or  rights  to  be  enforced  by  suit  in 
equity ;  of  these  a  pecuniary  legacy  is  a  familiar  instance,  for  which,  if 
the  executor  withhold  payment,  the  legatee  can  maintain  no  action  at 
law,(jt?)^  but  must  bring  a  suit  in  equity.     This  kind  of  chose  in  action 

(?)  Stat  3  &  4  Anne,  c.  9   made  perpetual  bv  stat.  7  Anne,  c.  25,  s.  3. 

(m)  Stat  18  &  19  Vict.  c.  Ill,  s.  1.  (n)  Stat.  30  &  31  Vict.  c.  144. 

(o)  Stat.  31  &  32  Vict.  c.  86. 

(p)  Decks  V.  Strutt,  5  Terra  Rep.  690  ;  Braithwaite  v.  Skinner,  5  M.  &  "W.  313- 
Legacies  under  fifty  pounds  may  now  be  recovered  in  the  county  courts,  under  the  acts 
for  the  more  easy  recovery  of  small  debts  and  demands  in  England,  unless  the  validity 
of  the  bequest  be  disputed.  Stats.  9  &  10  Vict,  c  95,  ss.  58,  65  ;  13  &  14  Vict.  c.  61  ; 
19  &  20  Vict.  c.  108.  These  courts  have  now  an  equitable  jurisdiction.  Stats.  28  & 
29  Vict.  c.  99 ;  30  &  31  Vict.  c.  142. 

ble  to  one  "  and  his  assigns,"  is  negotiable  States,   and   in    some  is   expressly   given 

by  the   terms  of  the   act  of  1799   of  that  by  statute  :  3   Barb.    Ch.    466  ;    Beeker  v. 

State,  and  passes  by  endorsement:  Prio-  Beeker,  7    John.    99;   Farwell  v.   Jacobs, 

leau  «.  S.  W.  R.  R.  Bk.,  16  Geo.  587.  4    Mass.     634;    Pettigrew    v.    Pettigrew, 

'  By  an   Act  of  the   Legislature  of  the  1     Stew.    580 ;    Morrow    v.    Breinzet,     2 

State  of  Pennsylvania,  approved  September  Rawle  185;    App  v.  Driesbach,   Id.   301; 

24th,   1866,   warehouse   receipts   for   mer-  Colt  v.   Colt,  32  Conn.    422;    Gilliland  r. 

chandise,  or  bills   of  lading  for  the  same  Beedin,  63   Penn.   St.   393;  but  in   Penn- 

when    in    transit   to    any   warehouseman,  sylvania   the    question    of  assets,   and   in 

shall  be  negotiable,  and  may  be  transferred  what  proportion,   in  case  of  a  deficiency, 

by  endorsement  and  delivery,  unless  said  the  claimant  is  to  be  paid,  is  to  be  deter- 

receipts    and    bills    of    lading    shall    be  mined  by  the  Orphans'  Court:  Bredin  v. 

stamped  "not  negotiable;"  and  any  per-  Gilliland,   28  Leg.  Intell.  p.   285;  Burt  v. 

son  to   whom  the   said  receipt  or  bill  of  Ilerron,    66    Penn.    St.    400.       In    which 

lading  may  be  so  transferred,  shall  be  con-  state    it    has   also  been   decided,  that  an 

sidered    the    owner  of    the    merchandise  action  at  common  law  will  not  lie  on  a 

therein  specified:   Purd.  Dig.  Suppl.  1449.  decree  of  the  Orphans'  Court,  for  the  pay- 

And  see  post  p.  62,  note  2.  ment  of  a  legacy  out  of  the  funds  in  the 

'  An  action  at  law  for  a  pecuniary  leg-  hands  of  an  executor  :   34  Penn.  St.  354  ; 

acy,  has  been  maintaiaed  in  some  of  the  nor  to  recover  a  distributive  share  of  a  de- 


OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY.      O 

may  be  assigned  directly  from  one  person  to  another,  and  the  assignee 
may  sue  in  equity  in  his  own  name.  For  equity,  being  of  more  modern 
origin  than  the  common  law,  is  guided  in  its  practice  by  rules  more 
adapted  to  the  exigencies  of  modern  society. 

In  modern  times  also  several  species  of  property  have  sprung  up  which 
were  unknown  to  the  common  law.  The  funds  now  afford  an  investment, 
of  which  our  forefathers  were  happily  ignorant,  whilst  canal  and  railway 
shares,  and  other  shares  in  joint  stock  companies,  and  patents  and  copy- 
rights, are  evidently  modern  sources  of  wealth.  These  kinds  of  pro- 
perty are  all  of  a  personal  nature,  many  of  them  having  been  made  so 
by  the  acts  *of  parliament  under  the  authority  of  which  they  have  j-^yn 
originated.  For  want  of  a  better  classification,  these  subjects  of 
personal  property  are  now  usually  spoken  of  as  choses  in  action.  They 
are,  in  fact,  personal  property  of  an  incorporeal  nature,  and  a  recurrence 
to  the  history  of  their  classification  amongst  choses  in  action  will,  as  we 
shall  hereafter  see,  help  to  explain  some  of  their  peculiarities. 

Such  is  the  general  outline  of  the  subjects  of  modern  personal  property. 
They  are  distinguished  from  real  property  by  being  unaffected  by  the 
feudal  rules  of  tenure,  by  being  alienable  by  methods  altogether  different, 
by  passing  in  the  first  instance  to  the  executors,  when  bequeathed  by 
will,  and  by  devolving,  on  their  owner's  intestacy,  not  on  his  heir,  but  on 
an  administrator  appointed  formerly  by  the  Ecclesiastical  Court,  but  now 
by  the  Court  of  Probate,  by  whom  they  are  distributed  amongst  the  next 
of  kin  of  the  deceased.  On  the  first  of  these  characteristics,  however, 
mainly  depends  the  nature  of  the  property  which  exists  in  things  personal. 
The  first  lesson  to  be  learned  on  the  nature  of  real  property  is  this — that 
of  such  property  there  can  be  no  such  thing  as  an  absolute  ownership ; 
the  utmost  that  can  be  held  or  enjoyed  in  real  property  is  an  estate.(^) 
There  may  be  an  estate  for  life,  or  an  estate  tail,  or  an  estate  in  fee 
simple;  but,  according  to  the  law  of  England,  there  cannot  exist  over 
landed  property  any  absolute  and  independent  dominion.  All  the  land 
in  the  kingdom  is  the  subject  of  tenure;  and  if  the  estate  is  not  holden 
of  any  subject,  at  any  rate  it  must  be  held  of  the  crown.  With  regard 
to  personal  property,  however,  the  primary  rule  is  precisely  the  reverse. 
Such  property  is  essentially  the  subject  of  absolute  ownership,  and  cannot 

(q)  Principles  of  the  Law  of  Real  Property  16. 

cedent's  estate  :  Ashford  v.  Ewing,  25  Id.  be  recovered  by  an  action  at  law :  Wooten 
213.     In  Mississippi,  a  specific  legacy  may     v.  Howard,  2  Sra.  &  Marsh   527. 


7  INTRODUCTORY   CHAPTER. 

P^oT  be  licld  for  any  estate.  It  is  true  that  the  *phrase  personal  estate 
is  frequently  used  as  synonymous  with  personal  property ;  but  this 
general  use  of  the  term  estate  should  not  mislead  the  student  into  the 
supposition  tliat  there  can  be  any  such  thing  as  an  estate  in  personalty 
properly  so  called.  The  rule  that  no  estate  can  subsist  in  personal  pro- 
perty would  seem  to  have  originated  in  the  nature  of  such  property  in 
early  times.  Goods  and  chattels  of  a  personal  kind,  in  other  words, 
movable  articles,  then  formed,  as  we  have  seen,  the  whole  of  a  man's 
personal  estate.  And  such  articles,  it  is  evident,  may  be  the  subjects  of 
absolute  ownership,  and  have  not  those  enduring  qualities  which  would 
render  them  fit  to  be  holden  by  any  kind  of  feudal  tenure.  As  personal 
property  increased  in  value  and  variety,  many  kinds  of  property  of  a 
more  permanent  nature  became,  as  we  have  seen,  comprised  within  the 
class  of  personal,  such  as  leases  for  years,  of  whatever  length,  and  Con- 
solidated Bank  Annuities.  But  the  rule  that  there  can  be  no  estate  in 
chattels,  the  reason  of  which  was  properly  applicable  only  to  movable 
goods,  still  continues  to  be  applied  generally  to  all  sorts  of  personal  pro- 
perty, both  corporeal  and  incorporeal.  The  consequences  of  this  rule, 
as  we  shall  hereafter  see,  are  curious  and  important.  But  in  the  first 
place  it  will  be  proper  to  consider  the  laws  respecting  those  movable 
chattels,  or  choses  in  possession,  which  constitute  the  most  ancient  and 
simple  class  of  personal  property ;  the  class,  however,  which  has  given 
to  the  rest  many  of  the  rules  for  regulating  their  disposition. 


*PART  I.  C*9] 

OF  CHOSES  IN  POSSESSION. 


CHAPTER   I. 

OF  CHATTELS  WHICH  DESCEND  TO  THE  HEIR. 

Choses  in  possession  are  movable  goods,  such  as  plate,  furniture, 
farming  stock,  both  live  and  dead,  locomotive  engines  and  ships.  These, 
as  has  been  before  remarked,  are  essentially  the  subjects  of  absolute 
ownership,  and  cannot  be  held  by  estates ;  they  are  alienable  by 
methods  altogether  difiFerent  from  those  employed  for  the  conveyance  of 
landed  property,  and  they  devolve  in  the  first  instance  on  the  executor 
of  the  will  of  their  owner,  or  on  the  administrator  of  his  effects,  if  he 
should  die  intestate.  There  are,  however,  some  kinds  of  choses  in  pos- 
session which  form  exceptions  to  the  general  rule  :  these  consist  of  cer- 
tain chattels  so  closely  connected  with  land  that  they  partake  of  its 
nature,  pass  along  with  it,  whenever  it  is  disposed  of,  and  descend  along 
with  it,  when  undisposed  of,  to  the  heir  of  the  deceased  owner.  The 
chattels  which  thus  form  exceptions  are  the  subject  of  the  present  chapter : 
they  consist  principally  of  title  deeds,  heir-looms,  fixtures,  chattels 
vegetable,  and  animals  fierce  naturce.     Of  each  in  their  order. 

Title  deeds,  though  movable  articles,  are  not  strictly  speaking  chattels. 
They  have  been  called  the  sinews  of  the  land,(a)  and  are  so  closely  con- 
nected with  it  that  they  will  pass,  on  a  conveyance  of  the  land,  without 
*being  expressly  mentioned  :  the  property  in  the  deeds  passes  out  r*i  q-i 
of  the  vendor  to  the  purchaser  simply  by  the  grant  of  the  land 
itself. (5)  In  like  manner  a  devise  of  lands  by  will  entitles  the  devisee  to 
the  posession  of  the  deeds  ;  and  if  a  tenant  in  fee  simple  should  die  in- 
testate, the  title  deeds  of  his  lands  will  descend  along  with  them  to  his 

(a)  Co.  Litt.  6  a. 

(6)  Harrington  v.  Price,  3  B.  «&  Ad.  170  (E.  C.  L.  R.  vol.  23)  ;  Philips  v.  Robinson,  4 
Bing.  106  (E.  C.  L.  R.  vol.  13)  ;  s.  c.  12  Moore  308. 


10  OF   CIIOSES   IN   POSSESSION. 

heir  at  law.((')  In  former  times,  when  warranty  was  usually  made  on  the 
conveyance  of  lands, (J)  the  rule  was  that  the  fcoffer  should  retain  all 
deeds  containing  warranties  made  to  himself  or  to  those  through  whom  he 
claimed,  and  also  all  such  deeds  as  were  nuiterial  for  the  maintenance  of 
the  title  to  the  land.(c)  But  if  the  feoffment  was  made  without  any 
warrant}',  the  feoffee  was  entitled  to  the  whole  of  the  deeds ;  for  the 
feoffor  could  receive  no  benefit  by  keeping  them,  nor  sustain  any  damage 
by  delivering  them.(/)  Warranties  have  now  fallen  into  disuse;  but  the 
principle  of  the  rule  above  stated  still  applies  when  the  grantor  has  any 
other  lands  to  which  the  deeds  relate,  or  retains  any  legal  interest  in  the 
lands  conveyed  ;  for  in  either  of  these  cases  he  has  still  a  right  to  retain  the 
deeds.(</)  And  if  the  grantor  should  retain  merely  an  equitable  right. 
to  redeem  the  lands,  as  in  the  case  of  a  mortgage  in  fee  simple,  it  has 
been  said  tliat  this  equitable  right  is  a  sufilcient  interest  in  the  lands  to 
authorize  him  to  withhold  the  deeds,  unless  they  are  expressly  granted 
r*m  *^  ^^^^  mortgagee. (7i)  It  is  very  questionable,  however,  *whether 
•-  J  a  legal  right  ought  to  be  attached  to  an  interest  merely  equitable. 
And  the  doctrine  last  mentioned  is  opposed  by  more  recent  decisions  in 
another  court. (2)' 

(c)  Weatworth's  Office  of  an  Executor,  14th  ed.  153;  Williams  on  Executors,  pt.  2, 
book  2,  c.  3,  s.  3. 

(d)  See  Principles  of  the  Law  of  Real  Property  344,  1st  ed. ;  346,  2d  ed.  ;  365,  4th 
ed. ;  376,  5th  ed. ;  399,  6th  ed. ;  407,  7th  ed. ;  426,  8th  ed. 

(e)  Buckhursfs  Case,  1  Rep.  I  b.  (/)   1  Rep.  1  a. 

Iff)  Bro.  Abr.  tit.  Charters  de  Terre,  pi.  53 ;  Yea  v.  Field,  2  T.  Rep.  708  ;  see,  how- 
ever, Sugd.  Vend.  &  Pur.  367,  13th  ed.  ;  2  Prest.  Conv.  466. 
(A)  Davies  v.  Vernon,  6  Q.  B.  443,  447  (E.  C.  L.  R.  vol.  51). 
(i)  Goode  V.  Burton,  1  Exch.  Rep.  189 ;  Newton  v.  Beck,  3  H.  &  N.  220. 

1  Since  the  recording  acts,  which  are  in  papers  in  his  hands,  borrows  money  on  a 

universal  operation  in  the  American  States,  second  mortgage.     If  this  second  loan  was 

the  difi'ereut  questions  which  have  arisen  made  without  knowledge  of  the  first  in- 

in   England  as   to  the   possession  of  title-  cumbrance,  and  before  the  first  mortgage 

deeds  have  become  comparatively  unim-  was  put  into  the  recorder's  office,  then  I 

portant,  as  the  recording  is,  in  all  cases,  should  apprehend  the  first  mortgage  should 

lor  thir  purposes  of  evidence,  and  of  notice  be  postponed:"  Evans  v.  Jones,  1  Yeates 

to    subsequent   purchasers,    made    of   the  172.      These    remarks  were    made    under 

same  validity  as  the  production,  or  posses-  the  Pennsylvania  Act  of  1715,  which  gave 

sion  of  the  title  papers  :   Wilt  v.  Franklin,  the  mortgagee  six  months  within  which  to 

1    Binn.  522.     "  In  one  case  only,"  it  was  record  his  deed,  and  if  correct,  would  ap- 

said  by  .McKean,  C.  J.,  "  can  the  mortgagee  ply  in  Pennsylvania  to  the  case  of  vendees, 

be  atlecled  by  suffering  the  title-deeds  to  who  have  also  six  months, 

remain  in  the  hands  of  the  mortgagor,  and  Under  the  present  acts  of  Assembly  of 

that  is,  where,  after   the  execution  of  the  that   State,  a  mortgage,  unless  to  secure 

mortgage,  and  before  the  same  is  recorded,  purchase-money,  is   not   a   lien   until    re- 

the  nioiigagor,  on  the  strength  of  the  title  corded  ;  purchase-money  mortgages  con- 


OF   CHATTELS   WHICH   DESCEND   TO   THE   HEIR.  11 

If  a  conveyance  of  lands  should  be  made  by  way  of  use,  thus,  if  lands 
should  be  granted  to  A.  and  his  heirs  to  the  use  of  B.  and  his  heirs,  it 
has  been  said  that  the  title  deeds  of  the  land  wilt  belong  to  A.,  the 
grantee ;  because,  although  the  Statute  of  Uses(A;)  conveys  the  legal  es- 
tate in  the  lands  from  A.  to  B.,  it  does  not  affect  the  title  deeds,  which 
must  consequently  still  remain  vested  in  A.{1)  But  this  doctrine  has 
been  justly  questioned,  on  the  ground  that  the  legislative  conveyance 
from  A.  to  B.,  effected  by  the  Statute  of  Uses,  ought  to  be  at  least  as 
powerful  as  the  common  law  conveyance  of  the  lands  to  A. ;  and  if  the 
latter  conveyance  can  carry  with  it  the  deeds  relating  to  the  land,  the 
former  conveyance  should  be  considered  as  powerful  enough  to  do  the 
same  ;(w)  and  it  has  accordingly  been  so  decided  in  a  case  in  Ireland. (w) 

The  tenant  of  an  estate  in  fee  simple  in  lands  possesses  the  highest 
interest  which  the  law  of  Eugland  allows  to  any  subject ;  and  such  a 
tenant  possesses  also  an  absolute  property  in  the  title  deeds,  which  he 
may  destroy  at  his  pleasure,  or  sell  for  the  value  of  the  parchment. (o) 
But  if  the  lands  to  which  deeds  relate  should  be  settled  on  any  person  for 
life  or  in  tail,  a  qualified  ownership  will  arise  with  respect  to  the  deeds, 
different  in  its  nature  from  that  simple  property  which  is  usually  held  in 
chattels  personal.  As  the  lands  are  now  held  for  a  limited  estate,  so  a 
limited  interest  in  the  deeds  *belongs  to  the  tenant.  The  tenant  r^-io-i 
for  life  or  in  tail,  when  in  possession  of  the  lands,  being  the  free- 
holder for  the  time  being,  is  entitled  also  to  the  possession  of  the  deeds  •,{p)  ^ 

{k)  27  Hen.  VIII.  c.  10.  (Z)   1  Sand.  Uses,  4th  ed.  119;  5th  ed.  117. 

{m)  Sugd.  Vend.  &  Pur.  366,  13th  ed. ;  Co.  Litt.  6  a,  n.  (4). 

(n)  Nalone  v.  Minoughan,  14  Ir.  Com.  Law  Rep.  540,  dissentiente  Hayes,  J. 

(o)  Cro.  Eliz.  496. 

(^)  Ford  V.  Peering,  1  Ves.  jun.  76;  Strode  v.  Blackburne,  3  Ves.  225;  Garner  v. 
Hannyngton,  22  Beav.  627;  Allwood  v.  Hewood,  Exch.  11  W.  R.  291  ;  1  Hurlst.  & 
Colt.  745. 

stitute    valid    liens    from    their    date,    if  24  Penn.  St.    366;   Britten's  Ap.,   45   Id. 

recorded  within  sixty  days  ;  but  it  is  pre-  172. 

suuied  that  such  an  instrument  must  ap-  '  The  tenant  for  life  is  prima  facie  en- 
pear  on  its  face  to  be  a  purchase-money  titled  to  the  possession  of  the  title-deeds, 
mortgage,  and  it  may  be  doubted  if  the  lien  and  although  in  a  proper  case  the  court 
of  such  a  mortgage  would  be  valid  before  will  grant  an  inspection  of  them  to  the  re- 
the  dale  of  its  record,  as  against  a  subse-  mainder-man,  the  precise  object  of  the  mo- 
quent  bona  Jide  lien  creditor  or  purchaser,  tion  must  be  set  forth,  and  the  court  will 
haviug  no  notice  of  it,  if  the  deed  of  con-  exert  a  paternal  authority  to  see  that 
veyauce  has  been  recorded,  or  is  exhibited  it  is  for  no  improvident  or  improper  pur- 
to  him,  acknowledging  in  its  body  and  in  pose.  Shaw  v.  Shaw,  12  Price's  Exchequer, 
the  receipt  at  its  foot,  payment  of  the  con-  p.  163;  Allwood  v.  Haywood;  1  Hurlst. 
sideratiou-money.   See  Hendrickson's  Ap.,  k  Colt.  745. 


12  OF    CIIOSES    IN    POSSESSION. 

"whereas  the  tenant  for  a  mere  term  of  years  of  whatever  length,  not  hav- 
ing the  freehold  or  feudal  possession  of  the  lands,  has  no  right  to  deeds 
"which  relate  to  suth  freehold  •,[q)  although  deeds  relating  only  to  the 
term  belong  to  such  a  tenant,  and  will  pass,  "without  any  express  grant, 
to  the  assignee  of  the  term.(r)  The  tenant  for  life  or  in  tail  in  posses- 
sion, though  entitled  to  the  possession  or  custody  of  the  deeds  Avhich  re- 
late to  the  inheritance,  has  no  right  to  injure  or  part  "with  them :(«)  he 
has  an  interest  in  the  title  deeds  correspondent  only  to  his  estate  in  the 
lands  ;  and  if  he  should  part  "with  the  deeds,  even  for  a  valuable  consider- 
ation, the  remainder-man,  on  coming  into  possession  of  the  lands,  "will 
nevertheless  be  entitled  to  the  possession  of  the  deeds,  just  as  if  the 
tenant  for  life  or  in  tail  had  kept  them  in  his  own  custody. (() 

Heir-looms  strictly  so  called,  are  now  very  seldom  to  be  met  with. 
They  may  be  defined  to  be  such  personal  chattels  as  go,  by  force  of  a 
special  custom,  to  the  heir,  along  with  the  inheritance,  and  not  to  the  ex- 
ecutor or  administrator  of  the  last  owner.(w)  The  owner  of  an  heir-loom 
cannot  by  his  will  bequeath  the  heir-loom,  if  he  leave  the  land  to  descend 
^ ,  ^  „^    to  his  heir ;  for  in  such  a  *case  the  force  of  the  custom  will  prevail 

r  131  •  •    •  •        • 

•-  -'  over  the  bequest,  which,  not  coming  into  operation  until  after  the 
decease  of  the  owner,  is  too  late  to  supersede  the  custom. (x)  Accord- 
ing to  some  authorities  heiz'-looms  consist  only  of  bulky  articles,  such  as 
tables  and  benches  fixed  to  the  freehold  ',{y)  but  such  articles  would 
more  properly  fall  within  the  class  of  fixtures,  of  which  we  shall  next 
speak.  The  ancient  jeAvels  of  the  crown  are  heir-looms.(2;)  And  if  a 
nobleman,  knight  or  esquire  be  buried  in  a  church,  and  his  coat  armor 
or  other  ensigns  of  honor  belonging  to  his  degree  be  set  up,  or  if  a 
tombstone  be  erected  to  his  memory,  his  heirs  may  maintain  an  action 
against  any  person  who   may  take  or  deface  them. (a)     The  boxes  in 

{q)  Churchill  v.  Small,  8  Ves.  323;  Harper  v.  Faulder,  4  Mad.  129,  138;  Wiseman  v. 
"Westland,  1  You.  &  Jerv.  117  ;  Hatham  v.  Somerville,  5  Beav.  360. 

(r)  Hooper  v.  Ramsbottom,  6  Taunt.  12  (E.  C.  L.  R.  vol.  1). 

(»)  Bro.  Abr.  tit.  Charters  de  Terre,  pi.  36.  As  to  production  see  Davis  v.  Earl  of 
Dysart,  20  Beav.  405. 

[t)  Davies  v.  Vernon,  6  Q.  B.  443  (E.  C.  L.  R.  vol.  51) ;  Easton  v.  London,  Exch.  12 
"W .  R.  53  ;  33  L.  J.  Exch.  34. 

(m)  See  Co.  Litt.  18  b.  {x)  Co.  Litt.  185  b. 

(y)  Spelman's  Glossary,  voce  Heir-Loom.  See  Williams  on  Executors,  pt.  2,  bk.  2, 
ch.  2,  s.  3. 

(a)  Co.  Litt.  18  b.  (a)  Ibid. 

The  right  to  title-deeds  goes  with  the  they  are  so  completely  part  of  the  realty' 
land ;  Lord  Buckhurst's  Case,  1  Co.  Rep.  that  at  common  law  no  larceny  could  be 
2;  Atkinson  v.  Baker,   4  T.  R.   229;  and     committed  of  them  :  3  Inst.  109. 


OF   CHATTELS   WHICH    DESCEND   TO    THE    HEIR.  13 

which  the  title  deeds  of  land  are  kept  are  also  in  the  nature  of  heir- 
looms, and  will  belong  to  the  heir  or  devisee  of  the  lands ;  for  such 
boxes  "  have  their  very  creation  to  be  the  houses  or  habitations  of 
deeds"  ;(6)  and  accordingly  a  chest  made  for  other  uses  will  belong  to 
the  executor  or  administrator  of  the  deceased,  although  title  deeds  should 
happen  to  be  found  in  it.  In  popular  language  the  term  "  heir-loom"  is 
generally  applied  to  plate,  pictures  or  articles  of  property  which  have 
been  assigned  by  deed  of  settlement  or  bequeathed  by  will  to  trustees,  in 
trust  to  permit  the  same  to  be  used  and  enjoyed  by  the  persons  for  the 
time  being  in  possession,  under  the  settlement  or  will,  of  the  mansion- 
house  in  which  the  articles  may  be  placed.  Of  this  kind  of  settlement 
more  will  be  said  hereafter. 

« 

Fixtures  are  such  movable  articles  or  chattels  personal  as  are  fixed 
to  the  ground  or  soil,  either  directly,  or  indirectly  by  being  attached  to 
a  house  or  other  *building.  The  ancient  common  law,  regarding  r*-i  4-1 
land  as  of  far  more  consequence  than  any  chattel  which  could 
be  fixed  to  it,  always  considered  everything  attached  to  the  land  as  part 
of  the  land  itself, — the  maxim  being  quicquid plantatur  solo,  solo  cedit.{c\ 
Hence  it  followed  that  houses  themselves,  which  consist  of  aggregates  of 
chattels  personal  (namely,  timber  and  bricks)  fixed  to  the  land,  were 
regarded  as  land,  and  passed  by  a  conveyance  of  the  land  without  the 
necessity  of  express  mention  ;  and  this  is  the  case  at  the  present  day.(d)^ 

(6)  Wentworth's  Office  of  an  Executor,  157,  14th  ed. 

(c)  See  4  Rep.  64  a  ;  I  Lord  Raymond  738  ;  Mackintosh  v.  Trotter,  3  Mee.  &  Wcls. 
184,  186  ;  Williams  on  Executors,  pt.  2,  bk.  2,  ch.  3,  s.  2. 
(rf)  See  Principles  of  the  Law  of  Real  Property,  13. 

1  And  in  the  United  States,  generally,  Strobh.  478 ;  Degraffenreid  v.  Scruggs, 
permanent  machinery,  such  as  the  main  4  Humph.  431  ;  English  v.  Foote,  8 
wheel  and  its  gearing,  an  engine  attached  Smed.  &  Marsh.  444  ;  Trull  v.  Fuller,  28 
to  a  building,  a  cotton  gin  fixed  to  its  Maine  545 :  Corliss  v.  McLagin,  29  Id- 
place,  will  vest  in  the  grantee  of  thereat  115;  Preston  v.  Briggs,  16  Yt.  124- 
estate  to  which  they  belong.  Miller    v.    Plumb,    6    Cowen    665 ;     Har- 

It  is  not  necessary  that  the  machinery  Ian  v.  Harlan,  20   Penn.  St.  303 ;    Parsons 

shall   be  actually  affixed  to  the  realty  in  v.    Copeland,    23    Maine    537  ;     Baker    v. 

order  to  pass  with  it,  where  it  is  of  course,  Davis,    19    N.  H.  325.      And    the    rolling 

to  have  it  occasionally   detached,  as,  for  stock  of  a  railroad  is  a  fixture  :  Minnesota 

instance,  a  set  of  rolls  in  an  iron  rolling  Co.  v. St. Paul  Co.,  2  Wall.  U.S.  609, note, 

mill,  temporarily  detached  in  order  to  in-  The  same  rule  will  hold  in  the  case  of  a 

sert  others  :  Voorhis  v.  Freeman,  2  Wat.  &  mortgage,  and  such  articles  will  be  bound 

Serg.  719;    Powell  v.  Manufacturing  Co.,  by   it:    Union  Bk.   v.   Emerson,    15  Mass. 

3    Mason    459;    Farrar    v.-  Stackpole,    6  159;  Voorhis  v.  Freeman,  2   Wat.  &  Serg. 

Greenleaf   154;    Sparks    v.    State    Bk.,   7  116;    Despatch    Line  of  Packets    v.    Bel- 

Blackf.     469;      Bratton     v.     Clawson,    2  lamy,    12     N.    H.     205;    Sparks    v.    State 


14 


OF    CUOSES    IN    POSSESSION. 


So  now,  a  conveyance  of  a  house  or  other  building,  whether  absolutely 
or  by  way  of  mortgage,  will  comprise  all  ordinary  fixtures,  such  as 
stoves,  grates,  shelves,  locks,  kc.,{e)  and  also  fixtures  erected  for  the 
purposes  of  trade,(/)  without  any  express  mention,  unless  an  intention 
to  withhold  the  fixtures  can  be  gathered  from  the  context. (^)  So  on  the 
decease  of  a  tenant  in  fee  simple,  the  devisee  of  a  house,  or  the  heir  at 
law  in  case  of  intestacy,  will  be  entitled  generally  to  the  fixtures  set  up 

(c)  Colegrave  v.  Dias  Santos,  2  Barn.  &  Cress.  76  (E.  C.  L.  R.  vol.  9)  ;  8.  c.  3  Dowl. 
&  Ry.  255;  Longstaff  v.  Meagoe,  2  Ad.  &  Ell.  167  (E.  C.  L.  R.  vol.  29);  Hitchman  v. 
Walton,  4  Mee.  &  Wels.  409  ;  Ex  parte  Barclay,  5  De  G.,  M.  &  G.  403  ;  Mathew  v. 
Fraser,  2  Kay  &  John.  536  ;  Williams  v.  Evans,  23  Beav.  239  ;  Walmesley  v.  Milne,  7  C. 
B.  N.  S.  115  (E.  C.  L.  R.  vol.  97);  Metropolitan  Counties  &c.  Society  v.  Brown,  26 
Beav.  454. 

(/)  Cullwick  V.  Swindell,  M.  R.,  L.  Rep.  3  Eq.  249;  Climie  v.  Wood,  Law  Rep.  3 
Exch.  257. 

(g)  Hare  v.  Horton,  5  Barn.  &  Adol.  715  (E.  C.  L.  R.  vol.  27). 


Bk.,  7  Blackf.  469 ;  Day  v.  Perkins,  2 
Sandf.  Ch.  359 ;  Winslow  v.  Merchants' 
Ins.  Co.,  4  Met.  300  ;  Butler  v.  Paige,  7 
Id.  40;  Sands  v.  Pfeiffer,  10  Cal.  258; 
Haskin  v.  Woodward,  45  Penn.  St.  42  ; 
Harris  v.  Haynes,  34  Vt.  220.  And  even 
though  put  up  after  the  piortgage  was 
given:  Burnside  v.  Twitchell,  43  N.  H. 
390  ;  Roberts  v.  Dauphin  Bank,  19  Penn. 
St.  71.  The  doctrine  has  been  carried 
to  its  farthest  extent  in  Pennsylvania, 
where  all  machinery  necessary  to  consti- 
tute a  manufactory,  passes  with  the  land  on 
which  it  stands  ;  but  it  must  have  been 
once  affixed  as  machinery,  in  order  to  be- 
come a  constituent  element  of  the  realty: 
Johnson  v.  Mehaffey,  43  Penn.  St.  308. 
The  criterion  is  not  the  permanent  fasten- 
ing to  the  freehold:  Harlan  v.  Harlan,  15 
Penn.  St.  513  ;  Heaton  v.  Findlay,  12  Id. 
304;  Pyle  v.  Pennock,- 2  Wat.  &  Serg. 
390;  Voorhis  t).  Freeman,  2  Id.  116;  Chris- 
tian V.  Dripps,  28  Penn.  St.  271;  Over- 
ton V.  Williston,  31  Id.  155;  Meig's  Ap.,  62 
Id.  33. 

But  in  New  York,  under  the  Revised 
Statutes,  the  rule  is  that  nothing  personal 
will  pass  as  a  fixture  unless  it  be  perma- 
nently fixed  to  the  freehold.  And  the  ma- 
chinery in  a  woollen  factory  is  personal 
property  :  Walker  v.  Sherman,  20  Wend. 
636;    Kelsey    v.    Durkee,    33    Barb.  410; 


Murdock  v.  Gifford,  18  N.  Y.  28  It  is, 
however,  the  permanent  and  habitual  con- 
nection, and  not  the  manner  of  fastening, 
which  determines  the  question  :  Laflin  v. 
Griffiths,  35  Barb.  58  ;  Tabor  v.  Robinson, 
36  Id.  483. 

And  this  would  seem  to  be  the  rule  in 
Connecticut  and  Massachusetts,  where  ma- 
chinery which  can  be  removed  without 
injury  to  the  building,  is  personal  property 
as  respects  creditors  and  purchasers :  Swift 
V.  Thomson,  9  Conn.  63  ;  Gale  v.  Ward> 
14  Mass  352.  And  in  Vermont,  and 
Ohio  :  Brennan  v.  Whitaker,  15  Ohio 
446  ;  Fullam  v.  Stearns,  30  Vt.  443  ;  Hill 
V.  Wentworth,  28  Id.  428. 

In  Maine,  it  has  been  held  that  a  dwell- 
ing-house partially  erected  on  land  of 
another,  under  a  parol  agreement  to  pur- 
chase, but  left  unfinished  and  not  under- 
pinned, remains  the  personal  property  of 
the  builder :  Pullen  v.  Bell,  40  Maine 
314.  And  see,  Fuller  v.  Heath,  39  .Maine 
437;  Preston  v.  Briggs,  16  Vt.  124; 
Stockwell  V.  Marks,  5  Shepley  455; 
Beers  v.  St.  John,  16  Conn.  522  ;  Shep- 
ard  V.  Spaulding,  4  Mete.  416;  The 
State  V.  Elliott,  11  N.  Hamp.  340;  White 
V.  Arndt,  1  Whart.  91  ;  Bartlett  v.  Wood, 
32  Vt.  372  ;  Murdock  v.  Harris,  20  Barb. 
407  ;  Richardson  v.  Copeland,  6  Gray 
536. 


OF    CHATTELS    WHICH   DESCEND   TO   THE    HEIR. 


14 


in  it.(7i)  The  ancient  rule  respecting  fixtures  has  been  greatly  re- 
laxed in  favour  of  tenants  for  terms  of  years,  who  are  now  permitted  to 
remove  articles  set  up  by  them  for  the  purposes  of  trade  or  of  orna- 
ment or  domestic  convenience,(^)  provided  they  remove  them  before  the 
♦expiration  of  their  their  tenancy. (/)'  But  the  old  rule  still  pre-  pi  c-i 
vails  with  regard  to  agricultural  fixtures,  which,  though  set  up  by 
the  tenant,  become,  by  being  fixed  to  the  soil,  the  property  of  the  land- 
lord ;(yt)^  unless  they  are  put  up  with  the  consent  in  writing  of  the  land- 
lord for  the  time  being,  in  which  case  it  is  provided  by  an  act  of  the  present 
reign(?)  that  they  shall  be  the  property  of  the  tenant,  and  shall  be  re- 
movable by  him  on  giving  to  the  landlord  or  his  agent  one  month's  previous 


(A)  Shep.  Touch.  470. 

(t)  Grymes  v.  Boweren,  6  Bing.  437  (E.  C.  L.  R.  vol.  19). 
(y)  Lyde  v.  Russell,  1  Barn.  &  Adol.  394  (E.  C.  L.  R.  vol.  20) 
5  C.  B.  N.  S.  546  (E.  C.  L.  R.  vol.  94). 
{k)  Elwes  V.  Maw,  3  East  38. 
(Z)  Stat.  14  &  15  Vict.  c.  25,  s.  3. 


Leader  v.  Homewood, 


1  Some  of  the  American  cases  to  this 
point  are  :  Gaffield  v.  Hapgood,  17  Pick. 
192  ;  Ex  parte  Quincy,  1  Atk.  477  ;  Holmes 
V.  Tremper,  20  Johns.  29  ;  Whiting  v.  Bras- 
ton,  4  Pick.  310;  Lelane  v.  Gasset,  17  Vt. 
463;  Cook  v.  Champlain  Co.,  1  Denio  91; 
Van  Ness  v.  Pacard.  2  Pet.  153  ;  Russell 
V.  Richards,  1  Fairfield  429;  Tapley  v. 
Smith,  18  Maine  12;  Cresson  v.  Stout, 
17  Johns.  116;  Tobias  v.  Frances,  3 
Vt.  425;  Taffe  i'.  Warnick,  3  Blackf. 
Ind.  Ill;  Reynolds  v.  Shutter,  5  Cowen 
323;  Raymond  v.  White,  7  Id.  318; 
Wetherbee  v.  Foster,  5  Vt.  136 ;  Taylor 
V.  Townsend,  8  Mass.  411;  Blood  v. 
Richardson,  2  Kent  Comment.  404,  n. ; 
White's  Appeal,  10  Penn.  St.  253;  Case 
of  the  Olympic  Theatre,  2  Br.  285 ;  Ross's 
Appeal,  9  Penn.  St.  494;  White  v. 
Arndt,  1  Whart.  91;  Gray  v.  Holdship, 
17  S.  &  R.  415  ;  1  Missouri  508  ;  Vaugh  v. 
Haldeman,  33'Penn.  St.  522  ;  Wall  v.  Hinds, 
4  Gray  256  ;  Montague  i'.  Dent,  1  Rich.  Law 
135;  Ombony  v.  Jones,  21  Barb.  520. 

2  This  doctrine  has  not  been  directly 
overruled  in  the  United  States,  but  has 
been  strongly  questioned.  Whenever  the 
question  has  been  before  the  courts,  they 
have  leaned  in  favour  of  the  agricultural 


tenant,  though  deciding  as  for  a  manu- 
facturing tenant:  Van  Ness  v.  Pacard,  2 
Pet.  137  ;  Whiting  v.  Braston,  4  Pick.  310; 
Holmes  v.  Tremper,  20  Johns.  29. 

Farm  fences,  however,  belong  to  the 
realty:  Mott  v.  Palmer,  1  Comst.  564; 
Walker  v.  Sherman,  20  Wend.  646  ;  Glid- 
den  V.  Bennett,  43  N.  H.  306. 

The  same  policy  of  encouraging  agri- 
cultural improvements,  will  not  permit  the 
outgoing  tenant  to  remove  manure  which 
has  accumulated  during  the  term :  Las- 
sell  V.  Reed,  5  Greenleaf  222  ;  Middle- 
brook  V.  Corwin,  15  Wend.  169;  Daniels 
V.  Pond,  21  Pick.  367;  Lewis  v.  Jones, 
17  Penn.  St.  262;  Kitteridge  v.  Rhodes, 
3  N.  H.  508;  Parsons  v.  Campbell,  11 
Conn.  525. 

The  outgoing  tenant  of  a  nursery,  has 
the  right  to  take  up  and  carry  away  trees 
and  shrubs,  as  personal  property  :  Miller 
I'.  Baker,  1  Mete.  27;  King  v.  Wilcomb, 
7  Barb.  S.  C.  263.  But  although  this 
is  true  as  between  landlord  and  tenant, 
the  contrary  is  the  case  as  between  mort- 
gagor and  mortgagee :  Maples  v.  Millon, 
31  Conn.  598  ;  Price  v.  Brayton,  19  la.  309. 
And  see  next  note. 


15  OF   CnOSES    IN    POSSESSION. 

notice  in  writing  of  his  intention  so  to  do,  subject  to  the  landlord's  right  to 
purchase  the  same  by  valuation  in  the  manner  provided  by  the  act.  This  act 
extends  to  farm  buildings  cither  detached  or  otherwise,  and  to  engines  and 
machinery,  either  for  agricultural  purposes  or  for  the  purposes  of  trade  and 
agriculture,  although  built  in  or  permanently  fixed  to  the  soil,  so  as  the 
tenant  making  any  such  removal  do  not  in  anywise  injure  the  land  or 
buildings  belonging  to  the  landlord,  or  otherwise  do  put  the  same  in  like 
plio-ht  and  condition,  or  as  good  plight  and  condition  as  the  same  were 
in  before  the  erection  of  anything  so  removed.  A  relaxation  of  the  old 
rule  has  also  been  made  in  favour  of  the  executors  of  a  tenant  for  life, 
who  appear  to  be  allowed  to  remove  fixtures  set  up  by  their  testator  for 
the  purposes  of  trade  or  of  ornament  or  domestic  convenience. («i)  But 
the  rule  of  the  common  law  still  retains  much  of  its  force  as  between  the 
devisee  or  heir  of  a  tenant  in  fee  simple  and  his  executor  or  adminis- 
trator. Thus  a  tenant  for  years  may  remove  ornamental  chimney-pieces 
set  up  by  him  during  his  tenancy  ;(r?)  but  if  erected  by  a  tenant  in  fee 
P^^^-,  simple,  they  will  pass  with  the  house  to  the  devisee  *or  heir.(o) 
'-  So  machinery  employed  in  carrying  on  iron  works  or  collieries 

may  be  removed  by  a  lessee  for  years,  if  erected  by  him ;  but  if  erected 
by  a  tenant  in  fee  simple,  such  machinery,  even  though  removable  with- 
out injury  to  the  freehold,  will  belong  to  the  heir  or  the  devisee  of  the 
land.(p)  However  it  seems  that  pier  glasses,  fixed  by  nails,  and  not  let 
into  panels,  and  hangings  fastened  up  for  ornament,  will  now  belong  to 
the  executor  or  administrator  of  a  tenant  in  fee  simple  as  part  of  his 
personal  estate.(9')* 

(m)  Lawton  v.  Lawton,  3  Atk.  14.  See  D'Eyncourt  v.  Gregory,  M.  R  ,  36  Law  Journ. 
N.  S.  107;  L.  Rep.,  3  Eq.  382. 

(«)  Bishop  V.  Elliot,  Ex.  Ch.  1  Jur.  N.  S.  962;  24  Law  J.  Exch.  229;  11  Ex.  Rep. 
113. 

(o)  Dudley  v.  Warde,  Amb.  113.  (p)  Fisher  v.  Dixon,  12  CI,  &  Fin.  312. 

{q)  Cave  v.  Cave,  2  Vern.  508  ;  Squire  v.  Mayor,  2  Eq.  Ca.  Abr.  430,  pi.  7  ;  s.  c.  2 
Freem.  249. 

Mn  New  York,  by  the  Rev.  Stat.,  the  ex-  Ellenborough    divided    the    questions    re- 

ecutor  is  put  on  the  same  footing  as  the  specting  the  right  to  what  are  ordinarily 

tenant,  as  to  the  right  to  fixtures  :  House  called    fixtures    into    three    classes — 1st, 

V.  House,  10  Paige  163.  those  arising  between  different  descriptions 

The  law  of  fixtures  has,  in   derogation  of  repre.sentatives   of  the   same   owner  of 

of  the  original  rule  of  the  common  law,  the  inheritance,  viz.,  the  heir  and  execu- 

which  subjected  everything  affixed  to  the  tor,  in   which  case  the  rule  obtains  with 

freehold  to  the  law  governing  the  freehold,  most  rigor  in  favour  of  the  inheritance,  and 

made  the  right  of  removing  fixtures  the  against  the  right   to  disannex  therefrom, 

general  rule   instead  of  the  exception:  2  and  to  consider  as  a  personal  chattel,  any- 

Kents  Comment,  p.  343.     In  the  leading  thing  which  has  been  affixed  thereto.     2d, 

case  of  Elwes  v.  Mawe,   3  East  38,   Lord  between  the  executors  of  tenant  for  life  or 


OF   CHATTELS   WHICH   DESCEND   TO    THE    HEIR. 


16 


Where  fixtures  are  demised  to  a  tenant  along  with  the  house,  mill  or 
other  building  in  which  they  may  happen  to  be,  the  property  in  the  fix- 


in  tail,  and  the  remainderman  or  rever- 
sioner, in  which  case  the  right  to  fixtures 
is  considered  more  favorably  for  the  ex- 
ecutor.    3d,  between  landlord  and  tenant, 
in  which  in  favour  of  trade  and  to  encourage 
industry,  the  greatest  latitude  and  indul- 
gence has  been  allowed  in  favour  of  the 
claim   of  the   tenant,   to    have    particular 
articles  considered  asjjersonal  chattels,  as 
against  the  owner  of  the  freehold,  although 
in  the  case  last  referred  to,  the  rule  laid 
down  was  held  to  apply  as  between  land- 
lord and  tenant,  only  to  the  case  of  fixtures 
set  up  for  trading  purposes,  and  not  to  ex- 
tend to   agricultural   ones ;  the    tendency 
has  been  both  in  this  country  and  in  Eng- 
land to  extend  it  to  the  latter  also,  and  to 
treat  the  occupation  of  agriculture   as   a 
trade:    Lawten  v.    Lawten,  3    Atk.     113; 
Dudley  v.    Warde,    Amb.    13  ;    in    which 
last  case  Lord  Hardwicke  appears  to  have 
considered  the  privilege  in  question  as  be- 
longing to  fixtures,  by  means  of  which  the 
owner,    a   tenant   for    life,    carried    on    a 
species    of  trade,  by  which    he    rendered 
the    produce  of  his    own    land    available 
to  his    own  profit.      See   also,   Penton  v. 
Robart,  2  East  91 ;  Mansborough  v.  Maton, 
4   A.    &    E.    884;    R.    v.    Ottey,    1    B.-& 
Aid.    161;    Whiting   v.    Braston,    4    Pick. 
310;   Holmes  v.  Tremper,   20  Johns.   29; 
Waterfall    v.    Penistone,    37    Eng.    L.    & 
Eq.    156 ;    McGreary   v.    Osborne,  9   Cal. 
119  ;  Crane  v.  Brigham,  3  Stockt.  (N.  J.) 
29;     Van   Ness   v.   Pacard,  2   Pet.    U.    S. 
137.     This  last  case  was  a  question  be- 
tween landlord  and  tenant.     The  defend- 
ant,  the   tenant,   had   erected   a  wooden 
dwelling-house,  two  stories  high  in  front, 
with  a  shed  of  one  story,  a  cellar  of  stone 
or  brick  foundation,  and  a  brick  chimney. 
The  defendant  and  his  family  dwelt  in  the 
house  from  its  erection  until  near  the  ex- 
piration of  the   lease,  when   he   took  the 
same  down  and  removed  all  the  materials. 
The   defendant  was  a   carpenter,   and   he 
gave    evidence    that   upon   obtaining    the 
lease  he  erected  the  building  above  men- 
tioned, with  a  view  to  carry  on  the  busi- 


ness of  a  dairyman,  and  for  the  residence 
of  his  family  and  servants  engaged  in  his 
said  business ;  and  that  the  cellar,  in 
which  there  was  a  spring,  was  made  and 
exclusively  used  for  a  milk-cellar,  in 
which  the  utensils  of  his  said  business 
were  kept,  and  scalded,  and  washed,  and 
used  ;  and  that  feed  was  kept  in  the  upper 
part  of  the  house,  which  was  also  occu- 
pied as  a  dwelling  for  his  fiiraily.  The  de- 
fendant also  had  his  tools  and  apprentices 
in  the  house,  and  carpenter  work  was  done 
there.  He  had  also  built  a  stable  for  his 
cows,  of  plank  and  timber  fixed  upon  posts 
fastened  into  the  ground ;  which  stable  he 
removed  with  the  house,  before  the  expira- 
tion of  his  lease.  It  was  held,  that  he  had 
a  right  to  remove  these  structures,  as  they 
had  been  erected  for  the  accommodation 
and  beneficial  operation  of  trade. 

The  strict  rule  as  to  fixtures  which  ap- 
plies between  heir  and  executor,  also 
applies  as  between  vendor  and  vendee, 
and  mortgagor  and  mortgagee  :  Winslow 
V.  Merchants'  Insurance  Co.,  4  Mete. 
306 ;  Preston  v.  Briggs,  16  Vermont 
124;  Miller  v.  Plumb,  6  Cowen  665; 
Hare  v.  Herton,  2  Neville  &  Manning 
428;  Pyle  v.  Pennock,  2  Wat.  &  Serg. 
396,  even  when  affixed  to  the  freehold  after 
the  mortgage  was  executed :  CuUwick  v. 
Swindell,  Law  R.  3  Eq.  249,  The  same 
rule  applies  in  favour  of  one  claiming 
fixtures  under  an  execution  as  real 
estate:  Goddard  v.  Chase,  7  Mass,  432; 
Voorhis  v.  Freeman,  2  Wat.  &  Serg.  116; 
Baker  v.  Davis,  19  N.  H.  325  ;  Murdock 
V.  Harris,  20  Barb.  407  ;  Harkness  v. 
Sears,  26  Ala.  493  ;  Gardner  v.  Finley, 
19  Barb.  317;  Walmsley  v.  Milne,  7  C. 
B.  N.  S.  115.  But,  when  a  tenant  is  en- 
titled to  remove  them  from  the  freehold 
and  treat  them  as  personalty,  the  same 
right  may  be  exercised  as  against  the  owner 
of  the  freehold,  by  an  assignee  or  an  exe- 
cution creditor  :  Lemar  v.  Mills,  3  Watts 
232  ;  Doty  v.  Gerham,  5  Pick.  487  ;  17 
S.  &  R.  413;  Hey  v.  Bruner,  61  Penn, 
St.  87. 


16  OF    ClIOSES   IN    POSSESSION. 

tures  still  remains  in  the  laiullorJ,  subject  to  tlie  tenant's  riglit  to  the 
possession  and  use  of  them  during  his  term  ;(r)  and  if  they  should  be 
severed  from  the  building  by  the  tenant  or  any  other  person,  or  should 
be  separated  by  accident,  the  landlord  will  acquire  an  immediate  right  to 
the  possession  of  them.(s)  In  this  respect  they  are  subject  to  the  same 
rules  as  timber,  which,  as  we  shall  see,  is  equally  a  part  of  the  inheri- 
tance until  severed,  and  when  cut  becomes  the  personal  property  of  the 
owner  of  the  fee.  Fixtures,  which  would  descend  with  the  house  or 
building  to  the  heir  of  the  owner  of  the  fee  on  intestacy,  arc  not  in  fact 
his  goods  and  chattels  properly  so  called.(f) 

Chattels  vegetable  consist,  as  their  name  imports,  of  moveable  articles 
of  a  vegetable  origin,  such  as  timber,  underwood,  corn  and  fruit.  All 
r*-j7-i  these  articles,  so  long  *as  they  remain  unsevered  from  the  land, 
arc  for  many  purposes  considered  as  part  of  it ;  and  they  will  pass 
by  a  conveyance  or  devise  of  the  land  without  express  mention. (w)  If, 
however,  the  trees  should  be  expressly  excepted  out  of  the  conveyance, 
they  will  remain  the  personal  property  of  the  grantor,  although  severed 
only  in  contemplation  of  law  ;(i')  and  in  like  manner  the  trees  alone  may 
be  granted  by  a  tenant  in  fee  simple,  and  will  then  form  the  personal 
property  of  the  grantee,  even  before  they  are  cut  down. (3/)  But  if  a 
tenant  of  lands  in  fee  simple  should  die  without  having  sold  or  devised 
them,(2)  the  law  then  draws  a  distinction  between  such  vegetable  pro- 
ducts as  are  the  annual  results  of  agricultural  labour,  and  such  as  are  not. 
The  former  class  are  called  by  the  name  of  emblements,^  and  the  right  to 
reap  them  belongs  to  the  executor  or  administrator  of  the  deceased  in 
exclusion  of  the  heir;(a)  whilst  the  latter  class  descend  to  the  heir  along 
with  the  land.^     The  reason  of  the  distinction  appears  to  be,  that  as 

(r)  Boydell  v.  M'Michael,  1  Cro.  Mee.  &  Rose.  177  ;  Hitchmaa  v.  Walton,  4  Mee.  & 
Wels.  409. 

(s)  Farrant  v.  Thompson,  5  Barn.  &  Aid.  826  (E.  C.  L.  R.  vol.  7). 

{i)  Winn  v.  Ingilby,  5  Barn.  &  Aid.  625  (P].  C.  L.  R.  vol.  7). 

{u)  Cora.  Dig.  tit.  Biens  (H).  (x)  Herlakenden's  Case,  4  Rep.  6.3  b. 

\y)  Wentworth's  Office  of  an  Executor,  14th  ed.  148  ;  Williams  on  Executors,  pt.  2, 
bk.  2,  ch.  2,  sect.  2. 

(z)  As  to  a  devisee,  see  Rudge  v.  Winnall,  12  Beav.  357  ;  Cooper  v.  Woolfit,  2  Hurl. 
&  Norm.  122. 

{a)  Com.  Dig.  tit.  Biens  (G). 

^  From  the  Norman  word  emblear — to  would  pay  him  its  value :  Roberts  v.  Bar- 
sow,  ker,  1  C.  &  M.  809;    Gibbons  on  Dilapi- 

»  In  England,  it  would  appear  that  the  dations,  76.     But  in  this  country,  in  sev- 

outgoing  tenant  of  a  farm,  has  a  right  to  eral  instances  it  has  been  held,  that  manure 

take  away  the  manure,  unless  the  landlord  made  on  a  farm  is  not  only  an  appurtenance 


OF   CHATTELS   WHICH    DESCEND   TO   THE    HEIR. 


17 


annual  crops  are  mainly  the  result  of  labour  incurred  at  the  expense  of 
the  owner's  personal  estate,  his  personal  estate  ought  to  reap  the  benefit 
of  the  crop  which  results. (6)  Accordingly  crops  of  corn,  and  grain  of 
all  kinds,  flax,  hemp,  and  everything  yielding  an  artificial  annual  profit 
produced  by  labour,  belong  to  the  executor  or  administrator,  as  against 
the  heir ;  whilst  timber,  fruit  trees,  grass,  and  clover,  which  do  not  repay 
within  the  year  the  labour  by  which  they  are  produced,  belong  to  the 
heir  as  part  of  the  land. ((?)  The  right  to  *emblements  also  be-  r>|c-iD-| 
longs  to  the  executor  or  administrator  of  a  tenant  for  life,(t^)  and 
to  a  tenant  at  will  if  dismissed  from  his  tenancy  before  harvest.(e)^     The 

(i)  Wentworth's  Office  of  an  Executor,  14th  ed.  147. 

(c)  See  Graves  i\  Weld,  5  Barn.  &  Add.   105  (E.  C.  L.  R.  vol.  27)  ;  s.  c.  2  Nev.  & 
Man.  725. 

(d)  Principles  of  the  Law  of  Real  Property,  24,  2d  ed.  ;  25,  3d  &  4th  eds. ;  27,  5th, 
6th,  7th  and  8th  eds. 

(e)  Ibid.  p.  310,  2d  ed. ;  325,  4th  ed. ;  336,  5th  ed. ;  353,  6th  ed. ;  360,  7th  ed.  ;  376, 
8th  ed. 


of  the  realty,  which  passed  with  a  convey- 
ance of  the  land  from  the  grantor  to  the 
grantee,  but  that  it  is  so  inseparably  inci- 
dent to  the  freehold,  that  it  forms  an  ex- 
ception to  the  usual  rule  as  to  fixtures,  and 
cannot  be  removed  by  an  outgoing  tenant 
at  the  end  of  his  term  :  Lassell  v.  Reed, 
6  Greenl.  222 ;  Middlebrook  v.  Corwin, 
15  Wendell  169;  Daniels  v.  Pond,  21 
Pick.  367:  Kitteridge  v.  Wood,  3  N. 
Hamp.  503;  Parsons  v.  Campbell,  11 
Conn.  525 ;  Goodrich  v.  Jones,  2  Hill 
142  ;  Lewis  v.  Jones,  9  Penn.  Leg.  Intel.  18  ; 
Wain  V.  O'Connor,  Id.  67  ;  Harrington  v. 
Justice,  4  Id.  289  ;  Lewis  v.  Jones,  17  Penn. 
St.  262 ;  Plumer  v.  Plumer,  10  Foster 
558.  In  New  Jersey,  it  has  been  re- 
garded as  personal  property  until  spread 
upon  the  ground :  Ruckman  v.  Outwater, 
4  Dutch.  581. 

^  It  is  a  doctrine  of  the  common  law, 
that  where  a  tenant  sows  the  land,  with 
the  expectation  of  gathering  the  harvests, 
no  sudden  and  unlooked  for  termination 
of  his  estate,  either  by  the  act  of  God  or 
the  act  of  the  lessor,  shall  deprive  him  or 
his  representatives,  of  the  fruit  of  his 
labour;  but  if  the  tenant's  interest  is  to 
determine  at  a  fixed  time,  or  if  he  by  his 
own  act  has  brought  his  lease  to  a  con- 
clusion, he  cannot  claim  the  profits,  for  it 


is  by  his  own  folly  that  he  has  sowed  that 
which  he  could  not  reap.  This  doctrine 
of  the  emblements,  as  it  is  called,  is  pretty 
generally  received  in  the  United  States,  it 
having  been  held,  that  where  the  lease  is 
to  expire  at  a  fixed  time,  or  is  terminated 
by  the  act  of  the  lessee,  he  is  not  entitled 
to  the  emblements:  Hawkins  v.  Skegg,  10 
Hump.  31;  Harris  v.  Carson,  7  Leigh 
632;  Debow  v.  Colfax,  5  Halst.  128 
Kitteridge  v.  Woods,  3  N.  H.  504 
Whitmarsh  v.  Cutting,  10  Johns.  360 
Bain  v.  Clark,  Id.  424.  On  the  other 
hand,  where  the  estate  is  of  an  uncertain 
termination,  and  it  is  suddenly  concluded 
by  the  act  of  God  or  that  of  the  lessor,  the 
lessee  or  his  legal  representatives,  may 
claim  the  emblements:  Comfort  v.  Dun- 
can, 1  Miles  229;  Davis  v.  Thompson, 
13  Maine  209;  Sherburne  v.  Jones,  20 
Id.  70;  Davis  v.  Brockenbank,  9  N.  H. 
73;  Debow  v.  Colfax,  5  Halst.  128; 
Kitteridge  v.  Woods,  3  N.  H.  504 ;  Rising 
et  al.  V.  Stannard,  17  Mass.  287;  Stewart 
V.  Doughty  et  als.,  9  Johns.  108  ;  Weem's 
Exec.  V.  Bryan  et  ux.,  21  Ala.  303; 
Bennett  v.  Bennett,  34  Id.  53.  And  in 
several  of  the  States  there  are  statutory 
provisions  on  this  subject:  Freeman  v. 
Tompkins,  1  Strob.  Eq.  53 ;  Gage  v. 
Rogers,  Id.  370;  Thompson  v.  Thompson, 


18 


OF   CHOSES   IN   POSSESSION. 


claims  of  tenants  at  rack  rent,  whose  tenancies  may  determine  by  the 
death  or  cesser  of  the  estate  of  tenants  for  life,  or  for  any  other  uncertain 
interest,  are  now  provided  for  by  a  recent  enactment,  giving  the  tenants 
at  rack  rent  a  right  to  continue  to  hold  until  the  expiration  of  the  current 
year  of  their  tenancy.(/) 

(/)  Stat.  14  &  15  Vict.  c.  25,  s.  1.     See  Principles  of  the  Law  of  Real  Property,  p. 
25,  3d  &  4th  eds. ;  27,  5th,  Gth,  7th  and  8th  eds. 


6  Munf.  514;  Green  v.  Cutwrlght,  Wright 
738.  In  Pennsylvania,  New  Jersey,  and 
Delaware,  the  local  custom  which  pre- 
vails in  certain  parts  of  England,  of 
allowing  all  tenants  a  way  going  crop, 
has  been  adopted  as  the  law  of  those 
States.  Under  it,  the  tenant  is  entitled  to 
his  "waygoing  crop,"  even  though  his 
estate  may  have  been  limited  to  expire  at 
a  fixed  time,  as,  for  example,  at  the  end  of 
one  year:  Demi  v.  Bossier,  1  Penn.  224; 
Stultz  V.  Dickey,  5  Binn.  285  ;  Carson  v. 
Blazer,  2  Id.  475  ;  Briggs  et  als.  v.  Brown, 
2  S.  &  R.  14 ;  Rank  v.  Rank,  5  Penn.  St. 
213;  Craig  v.  Dale,  1  W.  &  R.  509; 
Forsythe  v.  Price,  8  Watts  282  ;  Id- 
dings  V.  Nagle,  2  W.  &  S.  22 ;  Comfort 
V.  Duncan,  1  Miles  229  ;  Deaver  v.  Rice, 
4  Dev.  &  Bat.  431;  Diffendorfer  v. 
Jones,  cited  5  Binn.  289;  Van  Doren  t'. 
Everitt,  2  South.  460  ;  Templeman  v. 
Biddle,  1  Barring.  522 ;  Borrell  v.  De- 
wart,  37  Penn.  St.  134;  the  principle  of 
which  decisions  may  be  gathered  from 
the  words  of  C.  J.  Tilghman,  in  the  case 
of  Shultz  V.  Dickey,  where  he  says  that 
"In  the  nature  of  the  thing,  it  is  reason- 
able, that  where  a  lease  commences  in  the 
spring  of  one  year,  and  ends  in  the  spring 
of  another,  the  tenant  should  have  the 
crop  of  winter  grain  sown  by  him  the 
autumn  before  the  lease  expired,  other- 
wise he  pays  for  the  land  one  whole  year 
without  having  the  benefit  of  a  winter 
crop."  But  the  "  way  going  crop,"  is  the 
crop  of  wheat  which  is  sown  in  the  autumn 
and  reaped  the  following  summer,  and 
never  that  crop  of  wheat  which  is  sown  in 
the  spring  of  the  year:  Demi  v.  Bossier,  1 
Penn.  224;  Howell  v.  Schenck,  4  Zabr.  89. 
But  the  right  of  the  tenant  to  his  "  way 
going  crop,"  or  to  his  emblements,  may  be 
defeated  by  a  sale  of  the  premises  under  a 


judgment  or  mortgage  against  his  land- 
lord, the  lien  of  which  is  anterior  to  the 
lease  :  Pitts  v.  Hendrix,  6  Geo.  452 ; 
Gillett  V.  Balcom,  6  Barb.  S.  C.  370  ;  Jones 
V.  Thomas,  8  Blackf.  428;  Shepard  v. 
Philbrick,  2  Denio  174  ;  Lane  v.  King, 
8  Wend.  584  ;  Crews  v.  Pendleton,  1 
Leigh  297 ;  King  v.  Fowler,  14  Pick. 
238  ;  Howell  v.  Schenck,  4  Zabr.  89  ;  but 
see  to  the  contrary,  Cassily  v.  Rhodes,  12 
Ohio  88,  which  decides  that  a  lessee  is 
entitled  to  the  emblements  as  against  a 
purchaser  of  lands  sold  under  a  decree  of 
foreclosure:  Houts  v.  Showalter,  10  Ohio 
N.  S.  124;  and  see  also  Miller  v.  Clem- 
ent, 40  Penn  St.  484  ;  and  Bittinger  v. 
Baker,  29  Id.  66,  overruling  Sallade  v. 
James,  6  Id.  144;  Groflf  v.  Levan,  16 
Id.  179.  But  it  has  been  held  that 
where  lands  are  devised,  the  growing 
crops  on  the  land  will  go  to  the  devisee, 
and  not  to  the  executor,  unless  a  contrary 
intention  is  expressed  in  the  will :  Budd 
V.  Hiler,  3  Dutch.  43;  Shafner  v.  Shaf- 
ner,  5  Sneed  94.  As  between  the  suc- 
cessful plaintiff",  in  an  action  of  eject- 
ment and  the  evicted  defendant,  they  are 
a  part  of  the  realty :  Altes  v.  Hinckler,  36 
111.  275. 

The  doctrine  of  emblements  dees  not 
apply  to  the  public  lands  of  the  United 
States  :  Boyer  v.  Williams,  5  Mo.  335  ; 
Rasor  v.  Quails,  4  Blackf.  286. 

For  further  on  the  subject  of  emble- 
ments, see  Foster  v.  Fletcher,  7  Mon. 
534  ;  Green  v.  Cartwright,  Wright  738 ; 
Humphries  v.  Humphries,  3  Ired.  362; 
Evans  v.  Inglehart,  6  G.  &  Johns.  190  ; 
Singleton  v.  Singleton,  5  Dana  92  ;  Toby 
V.  Reed,  9  Conn.  225 ;  Moorhead  v. 
Snyder,  33  Penn.  St.  251 ;  Walmsley  v. 
Milne,  7  C.  B.  N.  S.  115;  ReiSv.  Reiff,  64 
Penn.  St.  134. 


OF   CHATTELS   WHICH    DESCEND   TO   THE   HEIR.  18 

When  lands  are  let  to  a  tenant  for  years  or  for  life,  if  no  exception  is 
made  of  the  timber,  the  property  in  the  timber  will  still  remain  in  the 
owner  of  the  inheritance,  subject  to  the  tenant's  right  to  have  the  mast 
and  fruit  growing  upon  it,  and  the  loppings  for  fuel,  and  the  benefit  of 
the  shade  for  his  cattle.(^)  Accordingly  all  fruit  which  maybe  plucked, 
or  bushes  or  trees,  not  being  timber,  which  may  be  cut  or  blown  down, 
will  belong  to  the  tenant  ;(A)  but  timber  trees,  which  may  be  cut  or  blown 
down,  will  immediately  become  the  property  of  the  owner  of  the  first 
estate  of  inheritance  in  the  land,  whether  in  fee  simple  or  in  tail.(e') 
Timber  trees  are  oak,  ash,  and  elm  in  all  places ;  and  in  some  particular 
parts  of  the* country,  by  local  custom,  where  *other  trees  are  r*-(Q-| 
generally  used  for  building,  they  are  for  that  reason  considered 
as  timber. (^)  But  if  the  tenant  should  be  a  tenant  witliout  impeachment 
of  waste  (sine  impetitione  vasti),  timber  cut  down  by  him  in  a  husband- 
like manner  will  become  his  own  property  when  actually  severed,(Z)  but 
not  before  ;{m)  for  the  words  "without  impeachment  of  waste"  imply  a 
release  of  all  demands  in  respect  of  any  waste  which  may  be  committed. (w) 
If,  however,  the  words  should  be  merely  without  being  imj^leaded  for 
waste,  the  property  in  the  trees  when  cut  would  still  remain  in  the  land- 
lord, and  the  action  only  would  be  discharged,  which  he  might  otherwise 
have  maintained  against  the  tenant  for  the  waste  committed  by  the  act 
of  felling  the  timber. (o) 

Animals /groB  natures,  or  wild  animals,  including  game,  are  exceptions 
from  the  rules  which  relate  to  other  movables,  on  the  ground  that  until 
they  are  caught  there  is  property  in  them.  If  therefore  the  owner  of  land 
in  fee  simple  should  die,  the  game  on  his  land,  or  the  fish  in  any  river  or 
pond  upon  the  land,  will  not  belong  to  his  executor  or  administrator(j3.) 
And  if  a  man  should  have  a  park  or  warren,  he  has  no  true  property  in 
the  deer,  conies,  pheasants,  or  partridges  ;  but  they  belong  to  him  only 

(ff)  Lilford's  Case,  11  Rep.  48  b. 

(h)  Channon  v.  Patch,  5  Barn.  &  Cress.  897  (E.  C.  L.  R.  vol.  11)  ;  s.  c.  8  Dow.  & 
Ry.  651  ;  Berriman  v.  Peacock,  9  Bing.  384  (E.  C.  L.  R.  vol.  23) ;  s.  c.  2  Moo.  &  Scott, 
524  ;  Pidgley  v.  Rawling,  2  Coll.  275. 

(i)  Herlakenden's  Case,  4  Rep.  63  a.  ;  Whitfield  v.  Bewitt,  2  P.  Wms.  240  ;  3  P.  Wms. 
268;  Lushiugton  v.  Boldero,  15  Beav.  1.  See,  however,  Earl  Cowley  v.  Wellesley,  M. 
R.,  1  Law  Rep.  Eq.  656,  qu.  ? 

{k)   2  Black.  Com.  281. 

(l)  Lewis  Bowles'  Case,  11  Rep.  82  b.  See  Principles  of  the  Law  of  Real  Property, 
23,  2d  ed. ;  24,  3d  &  4th  eds. ;  25,  5th,  6th,  7th  and  8th  eds. 

(to)  Cholmeley  v.  Paxtou,  3  Bing.  207  (E.  C.  L.  R.  vol.  11) ;  10  Barn.  &  Cress.  564 
(E.  C.  L.  R.  vol.  21). 

(n)   11  Rep.  82  b.  (o)  "Walter  Idle's  Case,  11  Rep.  83  a. 

'{j})  Co.  Litt.  8  a;  The  Case  of  Swans,  7  Rep.  17  b. 


19  OF    CHOSES    IN    POSSESSION. 

^^  ratione  privilegii  ^or  his  game  and  pleasure  so  long  as  they  remain  in 
the  privileged  place  "(</.)  But  a  property  in  wild  animals  may  be  ob- 
tained by  reclaiming  or  catching  them  [propter  industriam,)  or  by  reason 
r*901  ^^  their  being  unable  to  get  away  *(propter  impotentlarn)  [r.) 
Thus  deer,  even  though  in  a  legal  park,  may  be  so  tame  and  re- 
claimed as  to  pass  to  the  executors  of  the  owner  of  the  park  on  his 
decease ;(«)  so  rabbits  in  a  hutch,  fish  in  a  box,  and  young  pigeons  in  a 
dove  house,  unable  to  fly,  will  belong  to  the  executor  or  administrator  of 
the  owner,  and  not  to  his  heir.  It  appears  to  have  been  formerly  tliought 
that  hawks  and  hounds  were  not  subjects  of  personal  property,  but  would 
descend  with  the  lands  to  the  heir  ;  but  this  opinion  is  not  now  law. 
"For,"  observes  the  author  of  the  OfiRce  of  an  Executor,(^)  "although 
they  be  for  the  most  part  but  things  of  pleasure,  that  hindereth  not  but 
they  may  be  valuable  as  well  as  instruments  of  music,  both  tending  to 
delight  and  exhilarate  the  spirits  ;  a  cry  of  hounds  hath  to  my  sense  more 
spirit  and  vivacity  than  any  other  music." 

The  occupier  of  land  for  the  time  has  now  the  sole  right  of  killing  and 
taking  the  game  upon  the  land,  unless  such  right  be  reserved  to  the  land- 
lord or  any  other  person. (m)  Where  the  landlord  has  reserved  to  himself 
the  right  of  killing  game  he  may  authorize  any  person  or  persons,  who 
shall  have  obtained  certificates,  to  enter  upon  the  land  for  the  purpose  of 
pursuing  and  killing  game  thereon. (x)  And  a  recent  enactment  provides, 
that  where  the  landlord  or  lessor  of  any  land  has  reserved  to  himself,  by 
any  deed  or  writing,  the  exclusive  right  to  the  game  on  such  land,  then 
such  landlord  or  lessor,  for  the  purpose  of  prosecuting  all  persons 
r*2n  *^^^  trespassing  in  pursuit  of  game  on  such  land  without  his 
consent,  shall  deemed  the  legal  occupier  of  the  said  land ;  and 
any  person  who  shall  enter  or  be  upon  the  said  land  in  search  of  or  in 
pursuit  of  game,  without  the  consent  of  such  landlord  or  lessor,  shall  be 
deemed  a  trespasser. {?/)  And  the  lord  of  any  manor  or  reputed  manor 
has  the  right  to  pursue  and  kill  the  game  upon  the  wastes  or  commons 
within  the  manor,  and  to  authorize  any  other  person  or  persons,  who 
shall  have  obtained  certificates,  to  enter  upon  such  waste  or  commons  for 
the  same  purpose,  (z) 

{q)  7  Rep.  17  b  ;  Year  Book  4  Hen.  VI.  55  b,  56  a ;  F.  N.  B.  87,  n.  (a) 
(r)  2  Black.  Com.  391,  394  ;  Williams  on  E.xecutors,  pt.  2,  bk.  2,  ch.  2,  sect.  1. 
(«)  Morgan  v.  The  Earl  of  Abergavenny,  8  C.  B.  678  (E.  C.  L.  R.  vol.  65). 
(<)  Wentworth's   Office  of  an   Executor,  143,  14th    ed.     The   author  of  this  work   is 
supposed  to  have  been  Mr.  Justice  Doddridge. 

(w)  Stat.  1  k  2  Will.  IV  .  c.  32.     See  as  to  hares,  stat.  11  &  12  Vict.  c.  29. 
(x)  Stat.  I  &  2  Will.  IV.  c.  32,  s.  11.  {y)  Stat.  27  &  28  Vict.  c.  67. 

(z)  Stat.  1  &  2  Will.  IV.  c.  32,  s.  10. 


OF   CHATTELS   WHICH    DESCEND    TO   THE    HEIR.  21 

When  game  or  other  wild  animals  were  killed  on  any  land  by  any 
other  person  than  the  rightful  owner,  the  law,  with  respect  to  the  pro- 
perty in  the  game,  was  formerly  as  follows :  If  a  man  started  any  game 
within  his  own  grounds  and  followed  it  into  another's,  and  killed  it  there, 
the  property  remained  in  himself.  And  so  if  a  stranger  started  game  in 
one  man's  chase  or  free  warren,  and  hunted  it  into  another  liberty,  the 
property  continued  in  the  owner  of  the  chase  or  warren  ;  this  property 
arising  from  privilege,  and  not  being  changed  by  the  act  of  a  mere 
stranger.  Or  if  a  man  started  game  on  another's  private  grounds,  and 
killed  it  there,  the  property  belonged  to  him  on  whose  ground  it  was 
killed.  Whereas,  if,  after  being  started  there,  it  was  killed  in  the 
grounds  of  a  third  person,  the  property  belonged  not  to  the  owner  of  the 
first  ground,  because  the  property  was  local;  nor  yet  to  the  owner  of 
the  second,  because  it  was  not  started  in  his  soil ;  but  it  vested  in  the 
person  who  started  and  killed  it,  though  guilty  of  a  trespass  against  both 
the  owners.(a)  And  this  appears  to  be  still  the  law  with  respect  to  wild 
animals  which  are  not  *game.(5)  But  with  respect  to  game  an  r*99-| 
alteration  appears  to  have  been  made  by  the  last  Game  Act,(c) 
which  seems  to  vest  the  property  in  game  killed  on  any  land  by  stran- 
gers, in  the  person  having  the  right  to  kill  and  take  the  game  upon  the 
\a,nd.(d) 

(a)  2  Bl.  Com.  419;  Churchward  v.  Studdy,  U  East  249. 

(6)  See  Blades  v.  Higgs,  12   C.  B.  N.  S.  501  (E.  C.  L.  R.  vol.  104) ;    13  C.  B.  N.  S.  844 
(E.  C  L.  R.  vol.  106);  11  Jur.  N.  S.  701. 
(c)  Stat.  1  &  2  Will.  IV.  c.  32. 
{d)  Sect.  36.     Rigg  v.  Earl  of  Lonsdale,  1  H.  &  X.  923 


[*23]  *CHAPTER   II. 

OF   TROVER,  BAILMENT   AND    LIEN. 

Having  now  considered  those  movable  articles  of  property  -which 
form  exceptions  to  the  rules  by  which  chattels  personal  are  in  general 
governed,  let  us  proceed  to  notice  some  circumstances  in  which  chattels 
personal  may  be  placed,  so  as  to  form  not  real  but  apparent  exceptions 
to  the  primary  rule  already  noticed,(a)  that  personal  property  is  essentially 
the  subject  of  absolute  ownership,  and  cannot  be  held  for  any  estate.  The 
property  in  goods  can  only  belong  to,  or  be  vested  in,  one  person  at  one 
time :  in  this  respect  it  resembles  the  seisin  or  feudal  possession  of 
lands.(6)  Lands  however  may  be  so  conveyed  that  several  persons  may 
possess  in  them,  at  the  same  time,  several  distinct  vested  estates  of  free- 
hold, one  of  them  being  in  possession,  and  the  others  in  remainder,  or 
the  last  perhaps  being  in  reversion. (c)  But  the  law  knows  no  such  thing 
as  a  remainder  or  reversion  of  a  chattel.  It  recognizes  only  the  simple 
property  in  goods,  coupled  or  not  with  the  right  of  immediate  possession. 
This  simple  principle  of  law,  if  carefully  borne  in  mind,  will  serve  to  ^ex- 
plain many  points  which  would  otherwise  appear  difficult  or  even  contra- 
dictory. It  must  be  remembered,  however,  that  it  does  not  strictly  apply 
to  the  movable  articles  noticed  in  our  first  chapter,  which,  from  their 
connection  with  the  land,  *are  often  governed  by  the  principles 
L       J    of  real,  rather  than  those  of  personal  property. 

1.  "When  the  property  in  goods  is  coupled  with  the  possession  of  them, 
the  ownership  is  of  course  complete.  This  is  the  common  and  usual  case 
of  the  ownership  of  chattels  personal:  the  owner  knows  that  the  goods 
are  his  own,  and  in  his  own  possession,  and  that  is  sufficient  for  him. 
Circumstances  may,  however,  arise  to  change  this  state  of  things.  An 
article  may  be  lost.  In  this  case  the  owner  still  retains  his  property  in 
the  thing,  but  he  has  lost  the  possession  of  it.  The  property,  however, 
which  still  remains  in  him,  entitles  him  to  the  possession  of  the  article, 

(a)  Ante,  p.  7. 

(6)  See  Principles  of  the  Law  of  Real  Property,  111,  2d  ed. ;  116,3d&4th  eds.  ;•  121, 
122,  5th  ed. ;   127,  128,  6th  ed. ;  130,  131,  7th  ed.  ;   136,  8th  ed. 

(c)  Ibid.  p.  193,  2d  ed.  ;  206,  4th  ed. ;  215,  5th  ed. ;  225,  6th  ed.  ;  234,  7th  ed. ;  241 
8th  ed. 


OF   TROVER,    BAILMENT  AND   LIEN.  24 

whenever  he  can  meet  with  it ;  or,  in  legal  phraseology,  the  property- 
draws  with  it  the  right  of  possession.(c?)  If  therefore  another  person 
should  find  the  article  lost,  he  will  have  no  right  to  convert  it  to  his  own 
use,  if  he  has  any  means  of  knowing  to  whom  it  belonged,  but  must  on 
demand  deliver  it  up  to  the  rightful  owner,  in  whom  the  property  is 
already  vested.  If  he  should  refuse  to  do  so,  such  refusal  will  argue  that 
he  claims  it  as  his  own,  and  will  accordingly  be  evidence  of  a  conversion 
of  the  thing  to  his  own  use.(e)  For  the  wrong  or  trespass  thus  committed, 
a  specific  remedy  has  been  provided  by  the  law,  in  the  shape  of  an  action 
of  trover  and  conversion,  or  more  shortly  an  action  of  trover,  which  is  one 
of  those  actions  comprised  within  the  technical  class  of  trespass  on  the 
case.  The  word  trover  is  from  the  French  trouver,  to  find ;  and  the 
word  conversion  is  added,  from  tlie  conversion  of  the  goods  to  the  use  of 
the  defendant  being  the  gist  of  the  action  thus  brought  against  him.  That 
the  defendant  should  have  found  the  article  lost  is  not  his  fault,  but  his 
conversion  of  it  to  his  own  use  is  a  trespass  and  renders  him  liable 
*to  the  action  we  are  now  considering.  This  action  accordingly  p^Qr-i 
is  now  constantly  brought  to  recover  damages  for  withholding  the 
possession  of  goods  whenever  they  have  been  wrongfully  converted  by 
the  defendant  to  his  own  use,  without  regard  to  the  means,  whether  by 
finding  or  otherwise,  by  which  the  defendant  may  have  become  pos- 
sessed,(/)  This  action  can  be  maintained  only  when  the  plaintiff  has 
been  in  possession  of  the  goods,(^)  or  has  such  a  property  in  them  as 
draws  to  it  the  right  to  the  possession.  If  the  goods  have  been  wrong- 
fully converted  by  the  defendant  to  his  own  use,  the  plaintiff  will  succeed, 
if  he  should  prove  either  way  his  own  right  to  the  immediate  possession 
of  the  goods  ;(A)  if  he  should  not  prove  such  right,  he  will  fail.(t')  The 
property  in  the  goods  is  that  which  most  usually  draws  to  it  the  right  of 
possession ;  and  the  right  to  maintain  an  action  of  trover  is  therefore 
often  said  to  depend  on  the  plaintiff's  property  in  the  goods ;  the  right 
of  immediate  possession  is  also  sometimes  called  itself  a  special  kind  of 


[d)  2  Wms.  Saunders,  47  a. 

(e)  Ibid.  47  e  ;  Agar  v.  Lisle,  Hob.  187;  Bac.  Abr.  tit.  Trover  (B). 
(/)  3  Black.  Com.  153  ;  stat.  15  &  16  Vict.  c.  76,  s.  49,  sched.  (B)  28. 

(^r)  Addison  v.  Round,  4  Ad.  &  Ell.  799  (E.  C.  L.  R,  vol.  31) ;  s.  c.  6  Nev.  &  Man. 
422  ;  Brooke  v.  Mitchell.  6  N.  C.  349 ;  s.  c.  8  Scott  739, 

(A)  Wilbraham  v.  Snow,  2  Saund..47  ;  Armory  v.  Delamirie,  1  Str.  505 ;  Roberts  v. 
Wyatt,  2  Taunt.  268  ;  Legg  v.  Evans,  6  Mee.  &  W.  36  ;  Stephen  on  Pleading,  354, 
5th  efl. 

(i)  Gordon  v.  Harper,  7  T.  Rep.  9;  Ferguson  v.  Cristall,  5  Bing.  305  (E.  C.  L.  R,  vol, 
15)  ;  Leake  v.  Loveday,  4  Man.  &  Gr.  972  (E.  C.  L.  R.  vol.  43) ;  Bradle  v.  Copley,  1  C, 
B.  685  (E.  C.  L.  R.  vol.  58). 


25 


OF   CnOSES    IN    POSSESSION. 


property  \(k)  hut  these  exjiressioDS  shouhi  not  mislead  the  student.  The 
action  of  trover  tries  only  the  right  to  tlie  immediate  possession,  which, 
as  shall  now  see,  may  exist  apart  from  fhe  property  in  the  goods. 

For  let  us  suppose  that  the  finder  of  the  article  lost,  whilst  ignorant 
of  the  true  owner,  should  have  been  wrongfully  deprived  of  it  by  a  third 
r*or-i  person.  In  this  *case  the  owner  being  absent,  the  finder  is  evi- 
'-*'-'  dciitly  entitled  to  the  possession  of  the  thing;  and  he  will  accord- 
ingly succeed  in  an  action  of  trover  brought  by  him  against  the  wrong- 
doer.(/)'  Here  the  property  in  the  thing  which  was  lost  evidently  belongs 
still  to  the  original  owner  ;  but  the  right  of  possession  is  in  the  finder, 
until  the  owner  makes  his  appearance.  The  owner's  property  then  draws 
with  it  the  right  of  possession  ;  and  should  the  finder  convert  the  article 
found  to  his  own  use,  he  in  his  turn  will  be  liable  to  an  action  of  trover  in 
respect  of  the  owner's  right  of  possession.     Thus,  so  far  as  we  have 

(«)  Rogers  v.  Kennay,  9  Q.  B.  592  (E.  C.  L.  R.  vol.  58). 

{I)  Armory  u.Delamirie,  1  Str.  505  ;  1  Smith's  Leading  Cases  151  ;  Bridges  t;.  Ilawkes- 
worth,  15  Jur.  1079.  See  Buckley  v.  Gross,  3  B.  &  S.  566  (E.  C.  L.  R.  vol.  113), 
Bourne  v.  Fosbrook,  18  C.  B.  N.  S.  515  (E.  C.  L.  R.  vol.  114). 


1  The  finder  of  a  chattel  has  a  special 
property  in  it,  and  may  maintain  trover 
against  any  one  who  shall  convert  it,  ex- 
cept the  true  owner.  But  this  rule  does 
not  apply  to  the  finder  of  a  chose  in  ac- 
tion, e.  g.,  a  promissory  note  or  lottery 
ticket:  McLaughlin  v.  Waitc,  9  Cowen 
670;  see  Brandon  v.  Huntsville  Bank,  1 
Stew.  320;  Boyle  v.  Roche,  2  E.  D. 
Smith  335 ;  and  so  of  money  in  specie, 
or  bank  bills:  20  N.  Y.  76;  Aurentz  v. 
Porter,  56  Penn.  St.  115;  though  it  is 
otherwise  where  the  money  can  be  identi- 
fied, as  specie  on  special  deposit,  or  bank 
bills  by  proof  of  denomination,  letter,  &c. : 
Chapman  v.  Cole,  12  Gray  (Mass.)  141; 
Norton  v.  Kidder,  54  Maine  189.  For 
the  law  on  this  subject,  in  regard  to  those 
securities  known  on  the  stock  exchanges 
as  bonds  payable  to  bearer,  with  or  witli- 
out  coupons  for  interest,  attached  to  them, 
see  ante,  note  (1),  p.  5. 

The  possession  of  a  certificate  given  by 
the  keeper  of  the  public  warehouse,  that 
one  is  entitled  to  so  many  hogsheads  of 
merchandize  of  such  a  weight  and  quality, 
in  the  wareliouse,  to  be  delivered  to  bearer, 


is  evidence  that  the  merchandize  is  in  the 
defendant's  possession,  so  as  to  sujjport  an 
action  of  trover  for  it,  by  one  holding  the 
certificate :  Hance  v.  McCormick,  1  Cr.  C. 
C.  522. 

Possession  whether  rightfully  or  wrong- 
fully obtained,  is  a  sufficient  title  in  the 
plaintiff,  as  against  a  mere  stranger  or 
wrongdoer:  Knapp  t>.  Winchester,  11  Vt. 
351  ;  Coffin  v.  Anderson,  4  Blackf. 
395;  Cook  v.  Patterson,  35  Ala.  102; 
Jeffries  v.  Great  Western  R.  R.  Co.,  34 
Eng.  L.  &  Eq.  122.  But  not  as  against 
the  real  owner:  Sylvester  v.  Girard,  4 
Rawle  185. 

The  finder  of  a  chattel  may  maintain 
trover  for  it :  Clark  v.  Mallory,  3  Marring.  68. 

Trover  may  be  maintained  against  a 
stranger,  upon  a  mere  prior  possession 
obtained  by  a  purchaser  of  chattels,  under 
a  void  execution:  Duncan  v.  Spear,  11 
Wend.  54.  But  where  a  chattel  is  con- 
verted by  a  bailee,  who  sells  or  leases  it 
without  authority,  the  bailor  vany  main- 
tain trover  for  it,  even  against  a  vendee  or 
lessee  in  good  faith  and  without  notice: 
Crocker  v.  GuUifer,  44  Maine  491. 


OF   TROVER,    BAILMENT   AND    LIEN.  26 

already  proceeded,  -we  have  found  nothing  more  than  a  simple  property 
in  goods,  existing  with  or  without  the  right  of  possession.  The  action  of 
trover  tries  the  right  of  possession,  and  may  or  may  not  determine  the 
property.  For,  strange  as  it  may  appear,  there  is  no  action  in  the  law 
of  England  by  which  the  property  either  in  goods  or  lands  is  alone  decided. 

2.  But  the  article  in  question,  instead  of  being  lost  and  found,  may 
become  the  subject  of  bailment.  Bailment  is  defined  by  Sir  William 
Jones,  in  his  admirable  and  classical  Treatise  on  the  Law  of  Bailment,(m) 
to  be  a  delivery  of  goods  in  trust,  on  a  contract  expressed  or  implied 
that  the  trusts  shall  be  duly  executed,  and  the  goods  redelivered  as  soon 
as  the  trust  or  use  for  which  they  were  bailed  shall  have  elapsed  or  be 
performed.  The  term  bailment  is  derived  from  the  French  word  bailler, 
to  deliver.  The  person  who  delivers  the  goods  is  called  the  bailor ;  the 
person  to  whom  they  are  delivered  the  bailee.  The  trusts  on  which 
goods  may  be  delivered  are  various.  The  principal  are  the  following. 
They  may  merely  be  lent  to  a  friend,  or  left  in  the  custody  *of  a  r^()n-, 
warehouseman  or  wharfinger,  or  they  may  be  entrusted  to  a  car- 
rier  to  convey  to  a  distance,  or  to  an  agent  or  factor  to  sell ;  or  they  may 
be  pawned  for  money  lent,  with  or  without  a  power  to  sell  them,(w)  or 
let  out  to  hire.(o)  In  all  cases  of  bailment,  however,  the  simple  rule  still 
holds,  that  the  property  in  goods  can  belong  to  one  party  only  ;  and  when 
any  goods  are  bailed,  the  property  still  remains  in  the  bailor.(jt?)  The 
possession  of  the  goods,  however,  is  evidently  for  the  time  being  with  the 
bailee.  But  if,  while  goods  are  in  bailment,  a  third  person  should  be- 
come possessed  of  them,  and  should  wrongfully  convert  them  to  his  own 
use,  the  right  to  recover  possession  will  in  some  degree  depend  upon  the 
nature  of  the  bailment. 

If  the  bailment  should  be  what  is  called  a  simple  bailment,  as  in  the 
four  first  instances  above  mentioned,  that  is,  a  bailment  which  does  not 
confer  on  the  bailee  a  right  to  exclude  the  bailor  from  possession,  in  such 
a  case  either  the  bailee  or  the  bailor  may  maintain  an  action  of  trover 
against  the  wrong-doer. (5')'     The  bailee  may  maintain  this  action,  because 

(w)  p.  117. 

(n)  See  Pigot  v.  Cubley,  15  C.  B.  N.  S.  701  (E.  C.  L.  R.  vol.  109). 

(0)  See  Coggs  v.  Bernard,  2  Ld.  Raym.  909-912. 

Ip)  Franklin  v.  Neate,  13  Mee.  &  W.  481. 

{q)  Nicholls  V.  Bastard,  2  C.  M.  &  R.  659  ;  Manders  v.  Williams,  4  Exch.  Rep.  339. 

'  A.  of  Liverpool  shipped  goods,  which,  freight  was  payable  in  Liverpool,  and  it 
by  the  bill  of  lading,  were  to  be  delivered  appeared  that  the  goods  were  shipped  on 
to  D.  or  his  assigns,  in  Philadelphia.     The     account  of  A.    Held,  that  the  bill  of  lading 


27  OP   CHOSES   IN   POSSESSION. 

the  action  depends  only  on  the  right  to  possession  which  the  bailee  has 
by  virtue  of  the  bailment  made  to  him  ;(r)  and  the  bailor  may  also  main- 
tain the  action,  because  his  property  in  the  goods  draws  with  it  the  right 
of  possession,  and  the  bailment  is  not  of  such  a  kind  as  to  vest  this  right 
in  the  bailee  solely.  The  bailee  is  rather  in  the  situation  of  servant  to 
the  bailor,  and  the  possession  of  the  one  is  equivalent  in  construction  of 
law  to  the  possession  of  the  other.  But  as  it  would  be  unjust  that  the 
wrong-doer  should  *pay  damages  twice  over  for  his  oftence,  the 
L  J  recovery  of  damages  either  by  bailee  or  bailor  deprives  the  other 
of  his  right  of  action.(s)  If,  however,  the  bailment  should  not  be  of  the 
simple  kind,  but  should  confer  on  the  bailee  the  right  to  exclude  the  bailor 
from  the  possession,  here,  though  the  property  in  the  goods  still  remains 
in  the  bailor,  the  bailee  alone  can  maintain  an  action  of  trover  against 
any  person  who  may  have  taken  the  goods  and  converted  them  to  his  own 
use.  Thus  the  pawnee  or  hirer  of  goods  can  alone  maintain  an  action  of 
trover  so  long  as  the  pawning  or  hiring  continues. (^)  Here  again  we  have 
the  property  in  the  goods  still  vested  in  one  person,  the  bailor,  drawing 
with  it,  in  the  case  of  simple  bailment,  the  right  to  the  possession,  and 
in  the  case  of  other  bailments,  temporararily  disconnected  from  that 
right.  If  however,  any  bailee,  whatever  be  the  nature  of  his  bailment, 
should  convert  the  goods  bailed  to  him  to  his  own  use,  he  will  by  that  act 
have  determined  the  bailment :  the  property  in  the  bailor  will  draw  to  it 
the  right  to  immediate  possession,  and  the  bailor  may  accordingly  recover 
damages  for  the  act  by  an  action  of  trover. (w) 

3.  The  last  case  requiring  notice  in  which  goods  may  be  in  the  posses- 
sion of  a  person  who  has  no  property  in  them,  is  the  case  of  the  existence 
of  a  lien  on  the  goods.  A  lien  is  the  right  of  a  person  in  possession  of 
goods  to  retain  them  until  a  debt  due  to  him  has  been  satisfied.(w)  A 
lien  is  either  particular  or  general.     A  particular  lien  is  a  right  to  retain 

(r)  Sutton  V.  Buck,  2  Taunt.  202.  (s)  Bac.  Abr.  tit.  Trover  (C.) 

{t)  Gordon  v.  Harper,  7  T.  R.  9  ;  Burton  v.  Hughes,  2  Bing.  173  (E.  C.  L.  R.  vol.  9) ; 
Ferguson  v.  Cristall,  5  Bing,  305   (E.  0.  L.  R.  vol.  15)  ;  Pain  v.  Whitaker,  Ry.  &  Moo.  99. 

(m)  Cooper  v.  Willomatt,  1  C.  B.  672  (E.  C.  L.  R.  vol.  50)  ;  Johnson  v.  SLear,  15  C. 
B.  N.  S.  330  (E.  C.  L.  R.  vol.  109) ;  Pigot  v.  Cubley,  15  C.  B.  N.  S.  701,  (E.  C.  L.  R. 
vol.  109). 

{v)  2  East  235  ;  2  Rose  357  ;  Smith's  Compendium  of  Mercantile  Law  534,  5th  ed.  ; 
563,  6th  ed. 

vested    the    property    in    B.,  who    might     carriage  of  the  goods :  Griffith  t>.  Ingledew, 
maintain  an  action  in  his  own  name  against     6  S.  &  R.  429. 
the   owner  of  the  ship,  for  the  negligent 


OF   TROVER,   BAILMENT   AND   LIEN. 


28 


[*29] 


the  particular  goods  in  *respect  of  wliicli  the  debt  arises.  A 
general  lien  is  a  right  to  retain  goods  in  respect  of  a  general 
balance  of  an  account.  The  former  kind  of  lien  is  favored  in  law ;  but 
the  latter,  having  a-  tendency  to  prefer  one  creditor  above  another,  is 
taken  strictly. (a:)  A  particular  lien  is  given  by  the  common  law  over 
goods  which  a  person  is  compelled  to  receive;  thus  carriers(^)  and  inn- 
keepers(2)  have  a  lien  on  the  goods  in  their  care;  although  an  innkeeper 
cannot  detain  his  guest's  person,  or  take  his  coat  off  his  back,  to  secure 
payment  of  his  bill.(a)  A  particular  lien  is  also  given  by  law  to  every 
person  who  by  his  labor  or  skill  has  improved  or  altered  an  article  in- 
trusted to  his  care :  thus  a  miller  has  a  lien  on  the  flour  he  has  ground 
for  the  cost  of  grinding  :{b)  and  a  shipwright  has  a  lien  on  a  ship  in- 
trusted to  him  to  repair  for  the  costs  of  repairing  it.(c)^     So  a  lien  may 

(x)  3  Bos.  &  Pul.  494.  (y)   Skinner  v.  Upshaw,  2  Lord  Raym.  752. 

(z)  Thompson  v.  Lacey,  3  B.  &  Aid.  283  (E.  C.  L.  R.  voL  5). 

(a)  Sunbolf  v.  Alford,  3  M.  &  W.   248.     The  lien   of  innkeepers  on  the   goods   of 
their  guests  is  now  regulated  by  stat.  26  &  27  Vict.  c.  41. 
(6)  Ex  parte  Ockenden,  1  Atk.  235. 
(c)  Franklin  v.  Hosier,  4  B.  &  Aid.  341  (E.  C.  L.  R.  vol.  6). 


1  By  the  ciyil  law,  and  the  general  ad- 
miralty law,  material-men  have  a  lien  upon 
the  vessel  :  Domat's  Civil  Law,  book  3,  tit. 
1,  sec.  5. 

But  by  the  common  law  of  England, 
which  is  binding  on  the  Admiralty  Court, 
those  who  build,  repair  or  supply  a  domes- 
tic vessel,  have  no  lien  upon  the  vessel 
herself,  except  the  common  law  lien  of  the 
mechanic,  arising  from  his  mere  possession, 
and  only  coextensive  with  such  possession : 
Franklin  v.  Hosier,  4  B.  &  A.  341  ;  The 
Neptune,  Cumberlege,  3  Harr.  136,  139 ; 
Bland,  Ex  parte,  2  Rose  91  ;  The  Harmonic, 
1  W.  Rob.  178  ;  Raitt  v.  Mitchell,  4  Camp. 
R.  146;  The  Browmina,  1  Dodson  235; 
The  Alexander,  Id.  280;  The  Zodiac,  1 
Harr.  325;  The  Vibilia,  1  W.  Rob.  6; 
Buxton  V.  Snec,  1  Vesey  154;  Hoare  v. 
Clement,  2  Show.  338. 

But  under  the  general  admiralty  law  in 
England,  this  country,  and  elsewhere,  me- 
chanics, material-men,  and  others,  doing 
work  on,  or  furnishing  materials,  or  sup- 
plies for  a  foreign  vessel,  have  a  lien  on 
such  vessel,  without  any  limit  as  to  its 
duration  in  point  of  time  :  Justin  v.  Ballam, 
Salk.  34  ;   Ex  parte   Shank  and  others,  1 


Atk.  234;  "Wilkins  d.  Carmichael,  1  Doug. 
101  ;  Witkinson  v.  Bernardistson,  2  Wms. 
367  ;  Ex  parte  Halket,  3  Ves.  &  B.  135  ; 
2  Rose  1,94,  228  ;  The  Ship  Fortitude,  3 
Sumner  228;  The  Brig  Nestor,  1  Id.  74, 
79  ;  The  Siihooner  Marion,  1  Story  C.  C. 
68  ;  Reed  v.  The  Hull  of  a  New  Brig,  Id. 
246  ;  Buddington  v.  Stewart,  14  Conn. 
404 ;  Davis  v.  A  New  Brig,  1  Gilpin 
473 ;  The  General  Smith,  4  Wheat. 
438  ;  Shrewsbury  v.  The  Sloop  Two  Friends, 
Bee's  Adm.  433  ;  Gardner  v.  The  Ship 
New  Jersey,  1  Peters  Adm.  22,  23  ;  The 
Jerusalem,  2  Gallis.  345  ;  The  Yoang 
Mechanic,  2  Curtis  C.  C.  404  ;  Monsoon, 
Sprague's  Decs.  37  ;  Perkins  v.  Pike, 
42  Maine  141;  The  Active,  Olcott  Adm. 
271  ;  The  Tackle,  &c.,  of  the  America,  1 
Newb.  Adm.  195  ;  and  liens  existing  by 
the  maritime  law  of  foreign  jurisdic- 
tions can  be  enforced  here,  though  all 
parties  are  foreigners :  The  Maggie  Ham- 
mond, 9  "Wall.  U.  S.  435.  Whether  a 
vessel  is  domestic  or  foreign  depends  upon 
the  residence  of  her  owners  :  The  Golden 
Gate,  1  Newb.  Adm.  308 ;  and  vessels 
belonging  to  one  State,  when  in  the  ports 
of    another,    are    deemed    foreign  :    The 


29 


OF   CHOSES   IN   POSSESSION. 


be  claimed  for  training  a  horse,  because  he  is  improved  by  the  labor 
and  skill  thus  bestowed  upon  him  ;(fZ)  but  no  lien  can  arise  merely  for 

(d)  Beran  v.  Walters,  1  Moo.  &  Mai.  236. 


Chusan,  Sprague's  Decs.  39.  Although 
there  is  no  fixed  time  within  which  this 
lien  must  be  enforced,  jet  it  may  be  lost 
by  negligence  or  delay,  and  when  the 
rights  of  third  parties  are  compromised, 
courts  of  admiralty  will  require  vigilance 
in  parties  who  seek  their  aid,  and  will  not     the    rivers    Alleghany,    Monongahela 


569.  In  Pennsylvania,  the  lien  continues 
until  the  vessel  shall  have  proceeded  on 
the  voyage  next  after  the  work  done,  or 
materials  furnished,  and  no  longer:  Pur- 
don's  Dig.  (1861),  p.  62  ;  and  by  an  act  of 
the  20th  of  April,  1858,  vessels  navigating 


sit  to  enforce  stale  and  dormant  claims 
The  Eastern  Star,  Ware  186,  212;  Pack- 
ard V.  The  Louisa,  2  Wood.  &  M.  48  ; 
The  Mary,  1  Paine  180  ;  The  Margaret, 
3  Harr.  238;  The  Nestor,  1  Sumner 
71  ;  Ex  parte  Foster,  2  Story  145  ;  The 
Rebecca,  Ware  212  ;  Lillie  Mills,  Sprague's 
Decs.  307. 

The  regular  sale  of  such  property,  under 
a  decree  of  the  court,  gives  a  good  title 
against  all  the  world,  and  where  the  pro- 
perty was  affected  by  a  lien,  the  proceeds 
are  still  affected  by  it  in  whosesoever  hands 
they  maybe:  Benedict's  Adm.  309;  Gil- 
pin 189,  549 ;  Gardner  v  The  Ship 
New  Jersey,  1  Peters  Adm.  223  ;  The 
John,  3  Rqb.  288,  and  so  of  a  sale  made 
in  good  faith  by  the  master  in  a  foreign 
port,  and  with  a  necessity  for  it :  The 
Amelia,  6  Wall.  U.  S.  18.  But  it  has 
been  held  that  the  sale  of  a  steamboat  by 
the  order  of  court  in  Illinois,  would  not 
prevent  a  citizen  of  Missouri,  from  enforc- 
ing against  the  boat  in  the  hands  of  the 


Ohio,  are  made  liable  to  a  like  lien,  pro- 
vided suit  shall  be  commenced  on  said  lien 
within  two  years  after  the  work  is  done, 
or  materials  furnished  :  Id.  p.  64 ;  but 
"barges"  are  neither  ships,  boats  or 
vessels  within  the  meaning  of  these  acts  ; 
Nease's  Ap.,  3  Grant  110. 

In  New  York  it  ceases  at  the  expira- 
tion of  six  months  after  the  debt  was  con- 
tracted, unless  the  vessel  shall  be  then 
absent  from  the  port  where  it  was  con- 
tracted, when  it  shall  continue  until  ten 
days  after  the  return  of  the  vessel  to  the 
said  port ;  but  said  lien  shall  cease  when 
said  vessel  leaves  port,  unless  within 
twelve  days  thereafter,  the  person  having 
such  claim  shall  cause  sworn  specifications 
thereof  to  be  filed  :  4N.  Y.Revis.  Stats.  651, 
s.  2  ;  the  debt,  however,  must  amount  to 
fifty  dollars  or  upwards  for  sea  going  vessels, 
and  fifteen  dollars  for  other  vessels.  But 
as  to  vessels  navigating  the  western  and 
northwestern  lakes,  the  lien  ceases  at  six 
months  after  the  first  day  of  January  next 


purchaser  his  lien  created  by  the  laws  of     succeeding  the    time  when  such  debt  was 

contracted,  unless  during  said  six  months, 
said  vessel  shall  be  absent  from  port,  in 
which  case  the  lien  shall  continue  for  ten 
days  after  the  vessel's  return,  but  in  order 
that  the  lien  may  subsist,  specifications  as 
aforesaid  must  be  filed  before  the  first 
Tuesday  of  February  next  after  said  debt 
was  contracted  :  6  N.  Y.  Stats,  at  Large,  p. 
151,  chap.  422. 

In  New  Hampshire,  it  exists  for  four 
days  after  the  work  is  completed :  Gen. 
Stats,  of  N.  H.  p.  261.  sec.  9;  in  Florida, 
30  days;  Thompson's  Dig.  412.  In  New 
Jersey,  debts  of  twenty  dollars  and  up- 
wards, for  work  and  materials,  are  made 
liens  for  the  period  of  nine   months.    Nix. 


Missouri  :  Phegley  v.  David  Tatum,  33 
Mo.  461.  Captures  j'we  belli,  however, 
override  all  previous  liens :  The  Battle,  6 
Wall.  U.  S.  498. 

In  many  of  the  states  of  this  country, 
mechanics  and  material-men  have  by  posi- 
tive statutory  enactment,  a  lien  on  domes- 
tic vessels  for  work  done  on  or  materials 
furnished  for  such  vessel :  Grose's  Stats. 
111.  (1869)  p.  39  ;  2  Garvin  k  Hord's  Stats, 
of  Indiana,  p.  301  ;  Louisiana,  Civil  Code, 
Art.  2748.  A  similar  law  exists  in  Mis- 
souri and  in  Maine,  though  the  lien  only 
continues  for  four  days  from  the  time  the 
work  was  completed  or  materials  fur- 
nished:   Revis.    Stats.    Maine    (1857),    p. 


OF   TROVER,    BAILMENT   AND   LIEN.  29 

his  keep,(e)  unless  he  has  been  kept  by  an  innkeeper,  who  is  compelled  to 
take  him  in,(/)^    A  lien  on  goods  is  not  sufficient  to  warrant  the  sale  of 
them,(^)  nor  does  it  authorize  the  possessor  to  charge  for  their  stand- 
ing.(A)     A  particular  lien  also  arises  in  the  case  of  salvage,  or  rescuing 
a  ship  *or  its  lading  from  the  perils  of  the  sea  or  the  queen's    r^oA-i 
enemies,  for  the  trouble  and  risk  incurred  ;(^)  but  this  kind  of 
.lien  has  been  modified  by  the  Merchant  Shipping  Act,  1854,  which  pro- 
vides for  the  appointment  of  public  receivers  of  all  wreck,  into  whose 
hands  any  person,  not  being  the  owner,  who  finds  or  takes  possession  of 
any  wreck,  is  bound  to  deliver  it  as  soon  as  possible.(y)     The  lien  of  a 
shipowner  for  freight  is  now  regulated  by  the  Merchant  Shipping  Act 
Amendment  Act,  1862. (A;) 

A  general  lien,  when  it  does  not  arise  by  express  contract,  or  from  a 
contract  implied  by  the  course  of  dealing  between  the  parties,(^)  accrues 
in  consequence  of  the  custom  of  some  trade  or  profession  ;  and  it  may  be 
local  also,  that  is,  confined  to  some  particular  place.(m)  It  obtains  in 
many  trades,  such  as  wharfingers,(n)  dyers,(o)  calico  printers,(j9)  fac- 

(e)  Wallace  v.  Woodgate,  1  Ry.  &  Moo.  293.  See  Sanderson  v.  Bell,  2  Cro.  &  Mee. 
304,  311  ;  4  Tyr.  244,  252. 

(/)  Johnson  v.  Hill,  3  Stark.  172  (E.  C.  L.  R.  vol.  3)  ;  Allen  v.  Smith,  12  C.  B.  N.  S. 
638  (E.  C.  L.  R.  vol.  104),  affirmed  in  Ex.  Ch.,  9  Jur.  N.  S.  1284,  11  W.  R.  440. 

(ff)  Thames  Iron  Works  Company  v.  Patent  Derrick  Company,  1  John.  &  H.  93. 

[h)  British  Empire  Shipping  Company  v.  Somes,  1  E.  B.  &  E.  353  (E.  C.  L.  R. 
vol.  96). 

(t)  Hartford  v.  Jones,  1  Lord  Raym.  393  ;  Baring  v.  Day,  8  East  57. 

(j)  Stat.  17  &  18  Vict.  c.  104;  amended  by  stats.  18  &  19  Vict.  c.  91 ;  24  Vict.  c.  10, 
and  25  &  26  Vict.  c.  63. 

(k)  Stat.  25  &  26  Vict.  c.  63,  ss.  66,  7%. 

(i)  Simond  v.  Hibbert,  1  Rus.  &  Myl.  719. 

(m)  Holderness  v.  CoUinson,  7  B.  &  C.  212  (E.  C.  L.  R.  vol.  14). 

(w)  Naylor  v.  Mangles,  1  Esp.  109. 

(o)  Savill  V.  Barchard,  4  Esp.  53.     See,  however,  Close  v.  Waterhouse,6  East  523,  n. 

Ip)  Weldon  v.  Gould,  3  Esp.  268. 

Dig.  (1868),  p.  576.     In  Massachusetts,  the  state  authorizes  a  sale  under  the  terms  of 

lien  may  be  for  any  amount,  and  will  con-  the  act,  to  satisfy  the  lien  of  livery-stable- 

tinue   until  the  debt  is  paid :  Gen.  Stats,  keepers   and   innkeepers :  Purd.  Dig.  536. 

Mass.  (1860),  p.  768.     But  these  liens  are  A  power  of  selling  goods,  wares,  merchan- 

generally     postponed     to    the    claims    of  dise  or  other  property,  for  the  satisfaction 

mariners  for  wages.  of  their  liens,  for  the  costs  or  expenses  of 

1  In  Pennsylvania  a  livery-stable  keeper  carriage,  storage    or   labor   bestowed   on 

has  a  lien  for  the  keep  of  a  horse  :   Young  the  same,  is  likewise  given  to  commission 

V.  Kimball,  23  Penn.  St.  193;  and  so  has  merchants,  factors  and  all  common    car- 

a  groom  for  his  feed,  keep,  and  shoeing:  riers,  by  an  act  of  the  legislature  of  that 

52  Id.   522;  and  the  statute  law  of  that  State:  Purd.  Dig.  Suppl.  1344. 


30 


OF   CHOSES   IN   POSSESSION. 


tors,((?y  policy  l)rokers,(r)  and  banlvers,(«)  and  perhaps  also  common 
carriers. (^)  Solicitors  and  attorneys  have  also  a  lien  on  all  the  deeds 
and  documents  of  their  clients  in  their  possession  for  their  professional 
charo-es  f^enerallv  :(u)  but  this  doctrine  *is  to  be  taken  in  connec- 
-1  tion  with  the  peculiar  nature  of  title  deeds,  which  being  the 
sinews  of  the  land,  follow  the  seisin  of  it^  and  may  therefore  be  held  by 
the  client  only  for  a  limited  interest.  Thus,  if  a  tenant  for  life  should 
leave  the  title  deeds  of  the  land  in  the  hands  of  his  solicitor,  the  lien  of 
the  solicitor  for  his  professional  charges  would  be  coextensive  only  with 
his  client's  interest,  and  on  the  client's  decease  the  solicitor  would  be 
bound  to  deliver  up  the  deeds  to  the  remainder-man,  although  his  charges 

{q)  Houghton  v.  Matthews,  3  Bos.  &  Pul.  488;  Cowell  v.  Simpson,  16  Ves.  280. 

(r)  Man  v.  Shiffner,  2  East  523. 

(s)  Davis  V.  Bowsher,  5  T.  R.  488  ;  Brandao  v.  Barnett,  3  C.  B.  519,  530  (E.  C.  L.  R. 

Tol.  54). 

{i)  See  Rushforth  v.  Hadfield,  6  East  519  ;  7  East  224 ;  Aspinall  v.  Pickford,  3  Bos.  & 
Pul.  44,  note.     As  to  railways,  see  stat.  8  &  9  Vict.  c.  20,  s.  97. 

(m)  Stevenson  v.  Blakelock,  1  Mau.  &  Sel.  535;  Ex  parte  Sterling,  16  Ves.  258;  Ex 
parte  Pemberton,  18  Ves.  282. 


1  A  factor,  is  sometimes  said  to  be  one, 
who  buys  or  sells  upon  commission,  or  as 
an  agent  for  others :  3  Kent's  Com.  622  ; 
but  more  strictly,  the  term  is  only  applica- 
ble to  a  consignee  for  sale  :  Story  on 
Agency,  ?  111.  At  least,  only  such  a  fac- 
tor as  is  last  described,  has  a  lien  for  the 
general  balance  of  his  account  against  his 
principal,  or,  in  other  words,  a  general 
lien  :  Russell  on  Factors,  204,  212. 

In  the  year  1755,  this  right  to  a  lien  for 
the  general  balance  of  a  factor's  account, 
seems  first  to  have  been  solemnly  ad- 
judged in  England,  in  the  case  of  Kruger 
V.  Wilcox,  Ambler  252. 

Any  agent  or  broker,  however,  has  a 
particular  lien  upon  the  goods  of  his  prin- 
cipal while  in  his  possesssion.  This  lien, 
is  a  right  to  retain  any  article  of  his  prin- 
cipal, for  some  charge  or  claim  growing 
out  of,  or  connected  with,  that  identical 
thing ;  such  as  for  labor,  or  services,  or 
expenses,  upon  it :  Story  on  Agency,  g  354. 

The  liens  above  referred  to,  whether 
general  or  particular,  are  imi)lied  by  law, 
unless  they  have  been  waived  by  agree- 
ment. 

But  the  general  lien  of  a  factor  proper 


is  not  favored  by  the  law.  Thus  in  Hough- 
ton V.  Matthews,  3  Bos.  &  Pul.  485,  it  was 
held  that  a  general  lien  did  not  attach,  in 
respect  to  a  debt  which  arose  prior  to  the 
time  of  the  commencement  of  the  relation 
of  principal  and  factor  ;  and  there  does  not 
seem  to  be  any  authority  for  extending  the 
lien  over  any  property  of  the  principal  in 
the  hands  of  the  factor,  other  than  that 
which  has  been  consigned  for  sale  by  the 
fd!-mer  to  the  latter,  so  as,  for  exanii)lc,  to 
embrace  goods  purchased  by  the  factor  for 
his  principal.  See  also  Wilmerdiiig  v. 
Hart,  Hill  &  Denio  305. 

It  has  been  held  by  Lord  Ellenborough, 
at  Nisi  Prius,  in  Boardman  v.  Sill,  cited  1 
Camp.  410,  note,  that  a  factor  or  broker 
will  lose  his  lien,  if,  when  the  property  is 
demanded  of  him,  he  claims  to  retain  it  on 
a  diiferent  ground  than  that  of  the  lien — 
making  no  mention  of  it ;  but  the  correct- 
ness of  this  decision  may  well  be  doubted. 
But  see  White  v.  Gainer,  2  Bing.  23.  But 
if  a  factor  consent  to  a  sale  by  the  owner, 
or  conceal  from  the  purchaser  his  claim 
on  the  property,  his  lien  is  gone  :  Gragg 
V.  Brown,  44  Maine  157. 


OF   TROVER,    BAILMENT    AND    LIEN.  31 

might  remain  unpaid. (y)  So  if  the  client  should  be  a  mortgagee,  the 
solicitor  having  the  deeds  would  be  bound  to  deliver  them  to  the  mort- 
gagor, on  the  reconveyance  of  the  property'-,  on  payment  to  the  mort- 
gagee of  all  principal  and  interest ;  for  on  such  reconveyance  the  mort- 
gagee ceased  to  have  any  interest  in  the  lands. (a:)  And  in  like  manner 
if  the  client  should  be  a  mortgagor,  the  solicitor  would  have  no  right  to 
retain  the  deeds  as  against  the  prior  claim  of  the  mortgagee  :{y)  and  if 
the  client  should  be  a  trustee,  the  deeds  must  be  given  up  for  the  pur- 
poses of  the  trust. (4')  This  lien  also  -extends  only  to  charges  strictly 
professional,(a)  and  to  documents  in  the  possession  of  the  attorney  or 
solicitor  in  his  professional  character  ;(5)  but  it  has  been  held  that  such 
lien  is  assignable,  together  with  the  debt  and  documents,  to  a  third  per- 
son not  a  solicitor  or  attorney.(c)  A  mere  certificated  conveyancer  has 
no  general  lien  on  the  documents  in  his  hands.(<i)  It  is  now  provided 
that  in  *every  case  in  which  an  attorney  or  solicitor  shall  be  em- 
ployed to  prosecute  or  defend  any  suit,  matter  or  proceeding  in  L  ^-^J 
any  court  of  justice,  it  shall  be  lawful  for  the  court  or  judge,  before 
whom  any  such  suit,  matter  or  proceeding  has  been  heard,  or  shall  be 
depending,  to  declare  such  attorney  or  solicitor  entitled  to  a  charge  upon 
the  property  recovered  or  preserved ;  and  upon  such  dechiration  being 
made,  such  attorney  or  solicitor  shall  have  a  charge  upon  and  against, 
and  a  right  to  payment  out  of  the  property,  of  whatsoever  nature,  tenure 
or  kind  the  same  may  be,  which  shall  have  been  recovered  or  preserved 
through  the  instrumentality  of  any  such  attorney  or  solicitor,  for  the 
taxed  costs,  charges  and  expenses  of  or  in  reference  to  such  suit,  matter 
or  proceeding. (e) 

Lien,  then,  of  whatever  kind,  is  merely  a  right  to  retain  the  2'>ossession 
of  the  goods.  This  right  of  possession  enables  the  person  who  has  been 
in  possession  by  virtue  of  the  lien  to  maintain  an  action  of  trover  for  the 

{v)  Davies  v.  Vernon,  6  Q.  B.  443,  447  (E.  C.  L.  R.  vol.  51). 

{x)  Wakefield  v.  Newbon,  6  Q.  B.  276  (E.  C.  L.  R.  vol.  51). 

(»/)  Smith  V.  Chichester,  2  Dr.  &  War.  .393;  Blunden  v.  Desart,  Id.  405;  Pelly  v. 
Wathen,  7  Hare  351 ;  1  De  Gex,  Mac.  &  Gord.  16. 

(z)  Baker  v.  Henderson,  4  Sim.  27. 

(a)  The  King  v.  Sankey,  5  Ad.  &  Ell.  423  (E.  C.  L.  R.  vol.  31) ;  Worrell  v.  Johnson, 
2  Jac.  k  Walk.  218. 

(6)  Champernown  r.  Scott,  6  Madd.  53  ;  Balch  v.  Symes,  T.  &  Russ.  87. 

(<•)  Bull  V.  Faulkner,  2  De.  G.  &  S.  772,  aed  qu. 

(d)  Hollis  V.  Claridge,  4  Taunt.  807  ;  Steadman  v.  Hockley,  15  m!  &  W.  553. 

(c)  Stat.  23  &  24  Vict.  c.  127,  s.  28  ;  Wilson  v.  Hood,  3  HuTlst.  &  C.  148 ;  Haymes  v. 
Cooper,  33  Beav.  431. 


32  OF    CHOSES    IN    POSSESSION. 

goods  ;(f)  but  the  property  in  the  goods  still  remains  Tvith  the  owner; 
and  if  the  person  having  the  lien  should  give  up  the  possession  of  the 
goods,  his  lien  will  be  lost;(^)  the  owner's  property  in  them  will  draw 
to  it  the  right  of  posesssion,  and  enable  him  to  maintain  an  action  of 
trover.(/0  *And  if  the  person  having  the  lien  should  take  a  security  for 
his  debt,  payable  at  a  distant  day,  his  lien  would  on  that  account  be  lost, 
as  it  would  be  unreasonable  that  he  should  detain  the  goods  till  such 
future  time  of  payment  ;(0  and  in  this  case  also  an  action  of  trover  may 
be  maintained  by  the  owner  *of  the  goods,  by  virtue  of  the  right 
t*^^^    of  possession  now  accrued  to  him  in  respect  of  his  property.(A;) 

When  goods  are  taken  under  a  distress  for  rent,  the  property  in  the 
goods  still  remains  in  the  owner,  until  a  sale  is  made  pursuant  to  the 
statute(Zj  by  which  a  sale  is  authorized.(?«) 

In  all  the  above  cases  of  finding  of  goods,  bailment,  lien  and  distress, 
it  appears  clear,  therefore,  that  the  property  in  the  goods  is  still  simply 
vested  in  one  party  only,  although  the  right  to  their  immediate  posses- 
sion may  be  in  another  party,  and  the  actual  possession  possibly  in  a 
third. 

( /•)  Legg  V.  Evans,  6  M.  &  W.  36.  [g)  Kruges  v.  Wilcox,  Amb.  254. 

(h)  Sweet  V.  Pym,  1  East  4.  («)  Cowell  v.  Simpson,  16  Ves.  275. 

{k)  Hewison  v.  Guthrie,  2  New  Gas.  T56,  T59. 

{I)  Stat.  2  Wm.  &  Mary,  Sess.  1,  c.  5,  s.  2. 

(m)  King  v.  England,  4  B.  &  S.  782  (E.-C.  L.  R.  vol.  116). 


♦CHAPTER   III, 


[*34] 


OF   THE   ALIENATION    OF    CHOSES    IN    POSSESSION. 

Choses  in  possession  have  always  been  freely  alienable  from  one 
person  to  another.  The  feudal  principles  of  tenure,  which  in  ancient 
times  opposed  the  alienation  of  landed  estates,  could  have  no  application 
to'  the  then  insignificant  subjects  of  personal  property  ;  although  the  full 
right  of  testamentary  disposition  was  not,  as  we  shall  hereafter  see, 
enjoyed  in  early  times.  But,  though  the  property  in  personal  chattels 
may  be  freely  aliened,  it  is  impossible  for  a  man  to  make  a  valid  grant 
in  law  of  that  in  which  he  has  no  actual  or  potential  property,  but  which 
he  only  expects  to  have.^     A  person  who  has  an  interest  in  land  may 


1  An  agreement  to  sell  a  chattel  which 
is  in  an  unfinished  state,  to  be  delivered  at 
a  future  time,  when  finished,  is  an  execu- 
tory contract,  upon  which  a  present  pro- 
perty does  not  pass,  though  an  action  will 
lie  for  a  breach  of  the  agreement :  Pritchett 
V.  Jones,  4  Rawle  2G0.  When,  there- 
fore, A.  (a  tanner  in  the  country),  on  the 
31st  of  July,  1828,  in  consideration  of  a 
pre-existing  debt,  contracted  to  sell  to  B. 
(a  currier  in  the  city),  a  quantity  of  hides 
and  skins,  then  in  the  vats  of  the  vendor, 
undergoing  the  process  of  tanning,  but 
which  were  susceptible  of  immediale  de- 
livery, and  agreed  to  deliver  them  on  or 
before  the  12th  of  November  following, 
some  of  them  at  fixed  prices,  and  others  at 
the  market  price,  to  be  passed  to  the  cre- 
dit of  A.,  to  settle  his  account,  it  was  held, 
that  no  immediate  property  vested  in  B., 
and  that  the  goods  were  liable  to  execu- 
tion as  the  property  of  A. ;  notwithstanding 
that  the  transaction  was  an  open  one,  and 
there  was  proof  that  it  had  long  been  the 
course  of  business,  for  curriers  in  the  city 
to  purchase  leather  of  tanners  in  the  coun- 
try while  in  process  of  manufacture,  to  be 
delivered  when  tanned,  and  that  advances 
were  frequently  made  on  such  purchases  : 
Ibid.     And  to  the  same  principle  see  Nes- 


bit  V.  Burry,  25  Penn.  St.  208  ;  Dickson  v. 
Forsyth,  1  Grant  26 ;  Andrews  v.  Dur- 
ant,  1  Kernan  35  ;  Hewlet  v.  Flint,  7 
Cal.  204  ;  Pettengill  v.  Merrill,  47  Maine 
109;  Green  v.  Hall,  1  Houston  (Del.) 
506,  546. 

A  sale  is  an  executed  contract,  to  con- 
stitute which  delivery  in  fact,  or  in  law, 
is  indispensable,  and  it  cannot  be  given  of  a 
thing  which  has  not  yet  fully  come  into  ex- 
istence :  Winslow  v.  Leonard,  24  Penn.  St. 
14  ;  Clemens  v.  Davis,  7  Id.  263.  But, 
where  a  contract  is  made  for  the  pur- 
chase of  an  article  to  be  delivered  when 
finished,  and  afterwards  while  the  article 
is  still  in  an  unfinished  state,  the  original 
contract  is  abandoned,  and  the  purchaser 
agrees  to  take  the  article  as  unfinished,  a 
delivery  under  the  new  contract  is  good  as 
against  an  execution  subsequently  levied  : 
Ibid. ;  West  Jersey  R.  R.  Co.  v.  Trenton, 
&c.,  Co  ,  3  Vroom  517. 

A  contract  by  a  merchant  to  deliver 
hides  to  a  tanner,  to  be  charged  at  cost 
and  five  per  cent,  commission,  and  interest 
after  six  months,  and  when  tanned  to  be 
returned  to  the  merchant  to  be  sold  by 
him,  and  out  of  the  sale  the  first  cost  and 
five  per  cent,  to  be  deducted,  and  the 
balance  to  be  paid  to  the  manufacturer,  is 


34  OF   CHOSES   IN   POSSESSION. 

grant  all  the  fruit  whicli  may  grow  upon  it  hereafter. (a)  So  a  grant 
of  the  next  year's  wool  of  all  the  sheep  which  a  man  now  has  is  valid, 
because  he  has  a  potential  property  in  such  wool. (5)  But  a  grant  of  the 
wool  of  all  the  sheep  which  a  man  ever  shall  have  is  vo\d.{c)  And  in 
the  same  manner  the  assignment  of  a  man's  stock  in  trade  passes  only 
such  articles  as  are  his  property  at  the  time  he  executes  such  assignment, 
and  will  not  comprise  any  other  articles  which  he  may  afterwards  pur- 
chase ;{d)  not  even  if  the  instrument  of  assignment  should  purport  to 
convey  all  goods  which  should  at  any  time  thereafter  be  in  or  upon  his 
dwelling-house. (c)  The  property  in  goods  to  be  hereafter  acquired 
*may  however  be  effectually  passed  by  an  assignment  thereof  in 
L       -'    equity  coupled  with  a  license  to  seize  them.(/) 

(a)  Grantham  v.  Hawley,  Hob.  132  ;  Fetch  v.  Tutin,  15  M.  &  W.  110. 
(6)  Per  Pollock,  C.  B.,  15  M.  &  W.  116. 

(c)  Com.  Dig.  tit.  Grant  (D). 

(d)  Taphill  V.  Hillraan,  6  M.  &  G.  245  (E.  C.  L.  R.  vol.  46) ;  s.  c.  6  Scott  N.  R.  967. 

(e)  Lunn  v.  Thornton,  1  C.  B.  379  (E.  C.  L.  R.' vol.  50) ;  Gale  v.  Burnell,  7  Q.  B.  850 
(E.  C.  L.  R.  vol.  53)  ;  Belding  v.  Read,  Exch.  11  Jur.  N.  S.  547  ;  3  H.  &  C.  955. 

(/)  Congreve  v.  Evetts,  10  Exch.  298  ;  Hope  v.  Hayley,  5  E.  &  B.  830  (E.  C.  L.  R. 
vol.  85) ;  Allatt  v.  Carr,  Exch.  6  W.  R.  578  ;  Chidell  v.  Galsworthy,  6  C.  B.  N.  S.  471 
(E.  C.  L.  R.  vol.  95) ;  Holroyd  v.  Marshall,  10  H.  of  L.  Cas.  191  ;  9  Jur.  N.  S.  213  ; 
Reeve  v.  Whitmore,  L.  C.  12  W.  R.  113  ;  9  Jur.  N.  S.  1214 ;  Brown  v.  Bateman,  Law  Rep. 
2  C.  P.  272  ;  Blake  v.  Izard,  C.  P.  16  W.  R.  108. 

such  a  sale,  as  will  subject  the  hides  to  does  not  vest  the  property  in  B. :  McCul- 

levy  as  the  property  of  the  manufacturer:  lough  v.  Porter,  4  W.  &  S.  179. 

Pritchett  v.  Cook,  62  Penn.  St.  193  ;  Jen-  A  coal  company  agreed  with  a  contrac- 

kins   V.  Eichelberger,  4  Watts  121.     But  tor,  to  sell  him  a  scow-boat  on  the  condi- 

see  Hyde  v.  Cookson,  21  Barb.  92.  tions   expressed  in  the  company's  printed 

Where  wheat  was  sent  to  a  miller,  upon  regulations,  one  of  which  was,  that   the 

a  contract  that  the  sender  might  have  the  company   would    furnish    its    contractors 

same  amount  back  again,  or  as  much  flour  with  boats  for  cash  at  cost,  or  on  credit, 

as  it  would  make,  or  the  price  thereof,  the  with  interest,  butthat  the  ownership  should 

miller  to  mix  that  sent  with  his  own ;  it  remain  in  the  company  till  all  the  instal- 

was  held  that  it  was  a  sale  to  the  miller :  ments  of  the  price  were  paid,  when  a  bill 

Carlisle    v.    Wallace,    12    Ind.  255.      And  of  sale  should  be  made  out ;  the  company 

see  Dick  v.   Lindsay,  2  Grant's  Cases  431.  were  to  pay  the  tolls,  and  the  contractor 

But  a  delivery  of  an  article  with  the  priv-  to    take    freight    from    no    other    quarter, 

ilege  of  retaining  it  at  a  stated  price,  is  not  The  boat  still  continued  in  the  register  of 

a   sale,    but   a    bailment:    Camberlain    v.  the  company;  its  original    number  being 

Smith,  44  Penn.  St.  431  ;   Rowe  v.  Sharp,  painted  in  letters  and  figures  on  the  stern, 

51  Id.  26.  and  was  in  no  way  distinguishable  from 

An  agreement  whereby  goods  are  con-  the   other  boats   of  the  company.     Held, 

signed  by  A.  to  B.,  to  be  sold  at  not  less  that  the  property  did  not  pass  as  against 

than  the  invoice  prices,  the  invoice  prices  creditors  of  the  contractors,  until  the  boat 

to    be    paid  over  to  A.,  and    that   all  the  was  paid  for:  Lehigh  Co.  v.  Field,  8  W.  & 

goods  should  sell  for  above  those,  to  be  re-  S.   232.     See  also,   Clough   r.  Ray,  20  N. 

taincd    by    B.,   and    such    portion    of  the  H.  558. 
goods  as  remained  to  be  returned  to  A., 


OF  THE   ALIENATION   OF   CHOSES   IN   POSSESSION.  35 

The  manner  in  which  the  alienation  of  personal  chattels  is  effected,  is 
in  many  respects  essentially  different  from  the  modes  of  conveying  real 
estate.  In  ancient  times,  indeed,  there  was  more  similarity  than  there  is 
at  present.  The  conveyance  of  land  was  then  usually  made  by  feoff- 
ment, with  livery  of  seisin,  which  was  nothing  more  than  a  simple  gift 
of  an  estate  in  the  land  accompanied  by  delivery  of  possession. (^)  This 
gift  might  then  have  been  made  by  mere  word  of  mouth  •,{}i)  but  the 
Statute  of  Frauds(2')  made  writing  necessary  ;  and  now  every  conveyance 
of  landed  property  is  required  to  be  by  deed.(y)  Personal  chattels,  on 
the  contrary,  are  still  alienable  by  mere  gift  and  delivery  ;  though  they 
may  be  disposed  of  by  deed;  and  they  are  also  assignable  by  sale^  in  a 
manner  totally  different  from  the  conveyance  requisite  on  the  transfer  of 
real  estate.^  Each  of  these  three  modes  of  conveyance  deserves  a  sepa- 
rate notice. 

1.  And  first,  personal  chattels  are  alienable  by  a  mere  gift  of  them, 
accompanied  by  delivery  of  possession.  For  this  purpose  no  deed  or 
writing  is  required,  nor  is  it  *essential  that  there  should  be  a  con- 
sideration for  the  gift.  Thus,  if  I  give  a  horse  to  A.  B.,  and  at  L  -■ 
the  same  time  deliver  it  into  his  possession,  this  gift  is  complete  and 
irrevocable,  and  the  property  in  the  horse  is  thenceforward  vested  in  A. 
B.(A;)  But  if  I  purport  to  assign  the  horse,  and  yet  retain  the  posses- 
sion, the  gift,  though  made  by  writing  (so  that  it  be  not  a  deed),  is  abso- 
lutely void  at  law,(^)  and  equity  will  give  no  relief  to  the  donee.(m)  It 
may,  however,  be  observed,  that  if  the  donor  should  not  attempt  to  part 
with  the  subject  of  gift,  but  should  declare  that  he  keeps  possession  of  it 
in  trust  for  the  donee,  equity  will  seize  on  and  enforce  this  trust, 
although  voluntarily  created. (n)     In   some  cases  it  is  not  possible  to 

{g)  See  Principles  of  the  Law  of  Real  Property  113,  2d  ed.  ;  118,  3d  &  4th  eds.  ;  121, 
5th  ed. ;   127,  6th  ed. ;   130,  7th  ed. ;   138,  8th  ed. 

(A)  See  Principles  of  the  Law  of  Real  Property  117,  2d  ed. ;  122,  3d  &  4th  eds.  ;  128, 
5th  ed. ;  134,  6th  ed. ;   137,  7th  ed.  ;  143,  8th  ed. 

{i)  Stat.  29  Car.  II.  c.  3,  ss.  1,  2.  {j)   Stat.  8  &  9  Vict.  c.  106,  s.  3. 

[k)  2  Black.  Com.  441. 

[l)  Irons  V.  Smallpiece,  2  B.  &  Aid.  551  ;  Miller  v.  Miller,  3  P.  Wms.  356  ;  Bourne 
V.  Fosbrooke,  18  C.  B.N.  S.  515  (E.  C.  L.  R.  vol.  114).  See  also  Shower  v.  Pilck,  4 
Ex.  Rep.  478. 

(m)  Antrobus  v.  Smith,  12  Ves.  39,  46  ;  Edwards  v.  Jones,  1  My.  &  Cr.  226  ;  Dillon 
V.  Coppin,  4  My.  &  Cr.  647,  671. 

(n)  Ellison  v.  Ellison,  6  Ves.  656;  Ex  parte  Dubost,  18  Ves.  140,  150;  Vandenberg 
V.  Palmer,  4  Kay  &  John.  204;  Jones  v.  Lock,  L.  C.  11  Jur.  N.  S.  913,  correcting 
Scales  V.  Maude,  6  De  G.,  M.  &  G.  43,  51. 

1  By  the  law  of  Pennsylvania,  the  title  chattels,  without  a  written  bill  of  sale  : 
to  a  ship,  passes  by  actual  sale  and  de-  Weaver  v.  The  Susan  G.Owens,  1  Wall.  Jr. 
livery,   as  in  the   case  of  other  personal     366. 


36 


OF   CHOSES   IN    POSSESSION. 


make  an  immediate  and  complete  delivery  of  the  subject  of  gift;  and  in 
these  cases,  as  near  an  approach  as  possible  must  be  made  to  actual  de- 
livery ;  and  if  this  be  done  the  gift  will  be  effectual.  Thus,  if  goods  be 
in  a  warehouse,  the  delivery  of  the  key  will  be  sufficient  ;(o)  timber  may 
be  delivered  by  marking  it  with  the  initials  of  the  assignee,(;>)  and  an 
actual  removal  is  not  essential  to  the  delivery  of  a  haystack.(^)  But  the 
delivery  of  a  part  of  goods  capable  of  actual  delivery,  is  not  a  sufficient 
delivery  of  the  whole.(?')^ 

(o)  West  V.  Skip,  1  Ves.  sen.  244;  Ryall  v.  Rowles,  1  Yes.  sen.  362;  1  Atk.  171; 
Ward  V.  Turner,  2  Ves.  sen.  443. 

(p)  Stoveld  t'.  Hughes,  14  East  308. 

(g)  Chaplin  v.  Rogers,  1  East  190.     See  Young  v.  Matthews,  Law  Rep.  2  C.  P.  127. 

(r)  Per  Pollock,  C.  B.,  14  M.  &  W.  37,  correcting  a  dictum  of  Taunton,  J.,  2  A. 
&  E.  73  (E.  C.  L.  R.  vol.  29). 


1  When  there  is  a  contract  for  a  finished 
article,  as  a  steam  engine,  a  delivery  of  its 
various  parts  as  they  are  made,  will  not 
change  the  property  :  Shell  v.  Heywood,  4 
Penn.  St.  529.      This  was    the   case  of  a 
contract  entered  into  with  machinists,  for 
the   construction   of  a   steam   engine  and 
fixtures  for  a  grist-mill ;  portions   of  the 
machinery,  viz.,  the  boilers  and  balance- 
wheel,    were    delivered,    and    the    boilers 
fixed  in  a  building  attached  to   the   mill. 
The  purchaser  became  embarrassed,  and  in 
an  agreement  in  writing  between  him  and 
the  attorney  of  the  manufacturers,  it  was 
stated  that  the  boilers,  and  the  machinery 
attached,  or  to  be  attached  to  them,  were 
the   property  of  the   manufacturers,   and 
they,  by  their  attorney,  agreed  to  leave  the 
same  where  they  were  for  three  months, 
in  order  to  give  time  to  the  purchaser  to 
make  an  arrangement  with  his  creditors; 
and  in  the  event  of  his  inability  to  make 
such  arrangement,  then  the  manufacturers 
were  to  be  left  to  their  legal  remedy  for 
the  materials  already  furnished,  or  to  the 
removal    of    the    same,    at    their    option. 
The    sheriff  subsequently    levied    on    and 
Sold  the  boilers  and  wheel,  under  an  exe- 
cution against  the  mill-owner,  as  personal 
property,  notwithstanding  notice  given  to 
him  of  the  claim  of  the  machinists.    Held, 
that   the  property   had    remained    in    the 
latter,  and  that  trespass  would  lie  by  them 


against    the    sheriff,   for    selling    the    ma- 
chinery :  Ibid. 

Where   A.  agreed  to  furnish   B.  with  a 
machine,  to  be  put  up  by  A.  in  the  mill  of 
B.,  B.  to  cart  the  machine  to  the  mill,  and 
if  B.  was  satisfied  with  the  way  it  worked, 
to  pay  for  it,  otherwise  A.  to  take  it  away, 
and,  before  it  was  entirely  put  up,  it  was 
tried  and  found  not  to  work  satisfactorily, 
and  on  the  same  day  was  attached  as  the 
property  of  B.,  it  was  held,  that  the  pro- 
perty had    not   been  transferred :    Phelps 
V.  Willard,     16    Pick.    29.      A.    delivered 
cotton-yarn  to  B.,  on  a  contract  that  the 
same  should  be  manufactured  into  plaids  ; 
B.  was  to  find  the  filling,  and  was  to  weave 
so  many  yards  of  the  plaids,  at  15  cents 
per  yard,  as  was  equal  to  the  value  of  the 
j-arn  at  65  cents  per  pound.     Held,  that  by 
the  delivery  of  the  yarn  to  B.  the  property 
thereof  vested  in  him:  Bufi'um  v.  Merry,  3 
Mason    478.      Where    one    contracted    to 
burn  a  kiln  of  bricks,  for  which  he  was  to 
receive  10,000  of  them  when  burnt,  and  he 
performed  his  part  of  the  contract,  it  was 
held,  that  he  had  no  vested  interest  in  the 
bricks,  which  his  creditor  could  attach,  till 
actual  or  constructive  delivery:  Brewer  v. 
Smith,    3    Greenl.  44.      A    contract    was 
made  in  France   between   A.  and   B.,   by 
which  certain  goods  were  to  be  procured 
to  be  manufactured  by  A.,  and  transmitted 
by  him  through  B.'s  agents  at  Havre,  with 


OF   THE  ALIENATION   OF    CHOSES   IN    POSSESSION. 


37 


*When  goods  are  in  the  custody  of  a  simple  bailee,  such  as  a  r^qy-i 
■wharfinger  or  carrier,  the  possession  of  such  bailee  is,  as  we  have 
seen,(s)  constructively  the  possession  of  the  bailor  ;  and  either  the  bailor 
or  bailee  may  maintain  an  action  of  trover  in  respect  of  the  goods. 
•This  constructive  possession  of  the  bailor  may  be  delivered  by  him  to  a 
third  person,  by  making  as  near  an  approach  to  actual  delivery  as  is  pos- 
sible under  the  circumstances  of  the  case.  By  the  custom  of  Liverpool 
the  delivery  of  goods  in  another  person's  warehouse  is  effected  by  merely 
handing  over  a  delivery  order  ;(f)  and  the  property  in  wines  in  the  Lon- 
don Docks  appears  to  pass  by  the  endorsement  and  delivery  of  the  dock 
warrant. (m)  But  in  the  absence  of  a  custom  to  the  contrary,  it  would 
seem  that  there  can  be  no  legal  delivery  of  goods  into  the  hands  of  a 
third  person  without  the  consent  of  the  warehouseman  or  wharfinger  in' 

(.s)  Ante,  p.  27.  * 

(I)  Dixon  V.  Yates,  5  B.  &  Ad.  313  (E.  C.  L.  R.  vol.  27) ;  and  see  Greaves  v.  Hepke, 

2  B.  &  Aid.  131  ;  Kingsford  v.  Merry,  1  H..&  N.  503. 

(m)  Ex  parte  Davenport,  Mon.  &  Bl.  165.    Delivery  orders  are  now  subject  to  a  stamp 

duty  of  one  penny,  and  dock  warrants  to  a  stamp  duty  of  threepence,  by  statutes  23 

Vict.  c.  15,  and  23  &  24  Vict.  c.  111. 


instructions  as  to  their  further  transmis- 
sions ;  two  cases  of  goods  were  sent  to 
Havre,  and  forwarded  by  B.'s  agents,  with 
bills  of  lading,  in  one  vessel,  the  invoice 
of  one  of  the  cases  having  been  sent 
by  a  previous  vessel.  The  latter  case, 
having  arrived  in  a  difiFerent  vessel  from 
that  in  which  the  invoice  was  sent,  was 
not  claimed,  and  was  sent  to  the  public 
storehouse,  where  it  was  burnt.  Held, 
that  there  was  no  sale  by  A.  to  B.,  but  only 
a  contract  to  deliver  goods :  Low  v.  An- 
drews, 1  Story  38. 

It  is  true  that  the  sale  of  a  thing  not  in 
existence,  is,  upon  general  principles,  in- 
operative, being  merely  executory,  and 
when  the  thing  afterwards  to  be  produced, 
is  the  product  of  land,  or  anything  of  like 
nature,  the  owner  of  the  principal  thing 
may  retain  the  general  property  of  the 
thing  produced,  unless  there  be  fraud  in 
the  contract:  Smith  v.  Atkins,  18  Vt. 
(3  "Washb.)  461 ;  but  when  the  identical 
thing  delivered  is  to  be  restored,  though 
in  an  altered  form,  the  property  is  not 
changed :  Moore  i'.  Holland,  39  Maine 
307.     When  the  owner  of  coal-pits,  which 


were  in  process  of  burning,  sold  the  char- 
coal which  might  be  taken  therefrom,  at  a 
specified  price  for  each  100  bushels,  and 
agreed  that  he  would  complete  the  burning 
and  draw  the  coal  to  the  vendee's  place  of 
business,  and  the  vendor  accordingly  con- 
tinued to  have  charge  of  the  coal  unti  lit 
was  attached  by  his  creditors,  before  it 
had  been  measured  and  delivered  to  the 
vendee,  it  was  held,  that  the  vendee  ac- 
quired by  the  contract  no  property  in  the 
coal,  even  as  between  himself  and  the 
vendor  :  Hale  v.  Huntley,  21  Vt.  (6  Washb.) 
147. 

A  contract  was  made  with  a  coach- 
maker,  to  make  a  buggy  for  a  specified 
price,  and,  before  the  completion  of  the 
buggy,  the  parties  came  to  a  settlement, 
and  the  price  was  paid,  with  an  under- 
standing that  it  was  to  be  finished,  and 
then  delivered.  Held,  that  the  property 
in  the  buggy  vested  in  the  purchaser  from 
the  time  of  the  payment  of  the  mo- 
ney:  Butterworth  v.  McKinly,  11  Humph. 
206. 

See  ante,  note  (1),  p.  34. 


37  OF  cnosES  in  possession. 

whose  custody  the  goods  are.(a;)  When  goods  are  at  sea,  the  delivery  of 
the  hill  of  lading,  after  its  endorsement,  is  a  delivery  of  the  goods  them- 
selves ;{i/)  for  it  is  not  possible,  in  this  case,  to  make  any  nearer  approach 
to  an  actual  delivery. (2) 

2.  The  next  method  of  alienating  chattels  personal  is  by  deed.     Every 

deed  imports  a  consideration  ;(a)  for  *it  was  anciently  supposed, 
L  J  that  no  person  would  do  so  solemn  an  act  as  the  sealing  and  deliv- 
ery of  a  deed  without  some  sufficient  ground.  The  presence  of  this 
implied  consideration  renders  a  deed  sufficient  of  itself  to  pass  the  pro- 
perty in  goods. (i)  It  supplies  on  the  one  hand  the  want  of  delivery,  and 
on  the  other  the  want  of  that  actual  consideration  which  always  exists  in 
the  third  and  most  usual  mode  of  alienation  of  chattels  personal,  which  is, 

3.  By  sale.  It  is  in  this  last  and  most  usual  method  of  alienation  that 
the  contrast  presents  itself  between  the  means  to  be  employed  for  the 
alienation  of  real  property  and  chattels  personal.  When  a  contract  has 
been  entered  into  for  the  sale  of  lands,  the  legal  estate  in  such  lands  still 
remains  vested  in  the  vendor;  and  it  is  not  transferred  to  the  vendee 
until  the  vendor  shall  have  executed  and  delivered  to  him  a  proper  deed 
of  conveyance.  In  equity/,  it  is  true,  that  the  lands  belong  to  the  pur- 
chaser from  the  moment  of  the  signature  of  the  contract ;  and  from  the 
•same  moment  the  purchase-money  belongs,  in  equity,  to  the  vendor.(c) 
But  at  laiv  the  only  result  of  the  signature  of  a  contract  for  the  sale  of 
lands  is,  that  each  party  acquires  a  right  to  sue  the  other  for  pecuniary 
damages,  in  case  such  contract  be  not  performed.  Not  so,  however,  the 
case  of  a  contract  for  the  sale  of  chattels  personal.  Such  a  contract  im- 
mediately transfers  the  legal  property  in  the  goods  sold  from  the  vendor 
to  the  vendee,  without  the  necessity  of  anything  further.((^)  In  order  to 
this,  it  is  of  course  necessary,  that  the  transaction  have  within  itself  all . 

(x)  Zwinger  v.  Samuda,  1  Taunt.  265  (E.  C.  L.  R.  vol.  2) ;  Lucas  v.  Dorrien,  Ibid. 
278;  Bryans  v.  Nix,  4  M.  &  W.  775,  791;  M'Ewan  v.  Smitli,  2  H.  of  L.  Cases,  309, 
And  see  Pearson  v.  Dawson.  1  E.  B    &  E.  448  (E.  C.  L.  R.  vol.  96). 

(y)  Mitchell  v.  Ede,  II  A.  &  E.  888  (E.  C.  L.  R.  vol.  39);  and  see  stat.  18  &  19 
Vict.  c.  111. 

(z)   1  Ves.  sen.  362;  1  Atk.  171. 

(a)  Plowd.  308  ;  3  Burr.  1639  ;  1  Fonb.  Eq.  342  ;  2  Fonb.  Eq.  26  ;  Principles  of  the 
Law  of  Real  Property  118,  2d  ed. ;  123,  3d  &  4th  eds. ;  128,  5th  ed. ;  134,  6th  ed.  ;  137, 
7th  ed.  ;   144,  8th  ed. 

(6)  Carr  v.  Burdiss,  1  C,  M.  &  R.  782,  788;   s.  c.  5  Tyrw.  309,  316. 

(c)  Principles  of  the  Law  of  Real  Property  133,  2d  ed. ;  137,  3d  &  4th  eds.  ;  143,  5th 
ed. ;  150,  6th  ed. ;   153,  7th  ed. ;  159,  8th  ed. 

(<f)  Com.  Dig.  tit.  Biens  (D),  3. 


OF   THE   ALIENATION   OF   CHOSES   IN   ACTION.  38 

the  legal  requisites  for  a  sale  ;   and  these  requisites  *will  accord-    r^qnT 
inglj  form  the  next  subject  for  our  consideration. (e)  '-       -■ 

The  requisites  for  the  sale  of  goods  partly  depend  upon  their  value. 
Goods  under  the  value  of  10?.  sterling  may  now  be  sold  in  the  same  man- 
ner as  goods  of  whatever  value  were  anciently  saleable ;  whereas  goods 
of  the  value  of  10?.  or  upwards  are  now  regulated  in  their  sale  by  an  en- 
actment contained  in  the  Statute  of  Frauds.  (/)^  And  first,  with  regard 
to  such  goods  and  chattels  as  do  not  fall  within  this  enactment,  there  can 
be  no  sale  without  a  tender  or  part  payment  of  the  money,  or  a  tender  or 
part  delivery  of  the  goods,  unless  the  contract  is  to  be  completed  at  a 
future  time.  Thus  if  A.  should  agree  to  pay  so  much  for  the  goods,  and 
B.,  the  owner,  should  agree  to  take  it,  and  the  parties  should  then  sepa- 
rate without  anything  further  passing,  this  is  no  8ale.(^)  But  if  A. 
should  tender  the  money,  or  pay  but  a  penny  of  it,  or  B.  should  tender 
the  goods,  or  should  deliver  any,  even  the  smallest  portion,  of  them  to 
A.,  or  if  the  payment  or  delivery  or  both  should  be  postponed  by  ao-ree- 
ment  till  a  future  day,  the  sale  will  be  valid,  and  the  property  in  the 
goods  will  pass  at  once  from  the  vendor  to  the  vendee. (A)  If,  however, 
any  act  should  remain  to  be  done  on*the  part  of  the  seller  previously  to 
the  delivery  of  the  goods,  the  property  will  not  pass  to  the  vendee  until 
such  act  shall  have  been  done.  Thus,  if  goods,  the  weight  of  which  is 
unknown,  are  sold  by  weight,(?)  or  if  a  given  weight  or  measure  is  sold 
out  of  *a  larger  quantity,(^)  the  property  will  not  pass  to  the  ven-  r^^M-i 
dee  until  the  price  shall  have  been  ascertained  by  weighing  the 
goods  in  the  one  case,  or  the  goods  sold  shall  have  been  separated  by 
weight  or  measure  in  the  other.^     So  if  an  article  be  ordered  to  be  manu- 

(e)  In  the  recent  cases  of  Thompson  v.  Pettitt,  10  Q.  B.  101  (E.  C.  L.  R.  toI.  39)  ;  and 
Flory  V.  Denny,  7  Ex.  Rep.  581,  the  property  in  goods  was  held  to  pass  by  a  mere  writ- 
ten memorandum  by  way  of  mortgage,  without  any  delivery  ;  sed  qu. 

(/)  29  Car.  II.  c.  3,  s.  17. 

[g]  2  Bla.  Com.  447;  Smith's  Mercantile  Law  461,  5th  ed. ;  488,  6th  ed. 

{h)  Shep.  Touch.  224  ;  Martindale  v.  Smith,  1  Q.  B.  389,  395  (E,  C.  L.  R.  toI.  41). 

{i)  Hanson  v.  Meyer,  6  East  614;  Swanwick  v.  Southern,  9  A.  &  E.  895  (E.  C.  L. 
R.  vol.  36). 

{k)  Busk  V.  Davis,  2  Mau.  &  Selw.  397  ;  Shepley  v.  Davis,  5  Taunt.  617  (E.  C.  L.  R. 

TOI,  1). 

1  See  post,  p.  40,  note.  ham,  5  Cal.    226;  Hugus  v.  Robinson,  24 

2  The  title  to  goods  sold,  will  not  pass.  Penn.  St.  9  ;  Steelwagon  v.  Jefferies,  44 
from  vendor  to  vendee,  without  actual  or  Id.  407.  What  will  amount  to  aconstruc- 
constructive  delivery  of  the  same  :  Out-  tive  delivery,  is  a  question  of  fact  to  be 
water  v.  Dodge,  7  Cowen  85  ;  Vining  v.  ascertained  by  evidence,  and  certain  rules 
Gilbreth,  39  Maine  496;  Haynes  v.  Hun-  of  law:  Hondlette  v.  Tallman,  14  Maine 
sicker,  26  Penn.  St.  58 ;   Samuels  v.  Gor-  400 ;    Smith    v.    Craig,    3    W.    &    S.    14 ; 


40 


OF   CnOSES   IN   POSSESSION. 


facturcl,  the  property  in  it  will  not  vest  in  the  person  who  gave  the 
oracr,  until  it  shall,  with  his  assent,  have  been  appropriated  for  bis 


Atwell    V.   Miller,  6    Md.    10  ;    Chase    v.  barges  having  been  partly  filled,  were  con- 

R«l8ton,  30    Penn.    St.  539  ;    Caldwell   v.  sumed  by  fire,  it  was  held  that  the  barrels 

Garner,' 31   Mo.  131.     But  a  constructive  of  oil   on   the  barges  had  not  been  deliv- 

dclivcry,  where  an  actual  one  is  reasonably  ered  :    Oil    Co.    v.  Hughey,    56   Penn.    St. 

practicable,  is  of  uo  avail:  Billingsley  v.  322;  and  the  fact  that  a  part   of  the  price 

White,   59    Penn.    St.    4G4  ;    McKibbin    v.  has  been  paid,  will   not  alter  the  circum- 

Martin,  04  Id.  352  ;  and  it   has   been  held  stances,  so   as   to  make  the  contract  com- 

that  B!<  to  third  persons,  there  can   be   no  plete,  provided  there  is  still  something  to 

sale,  so  long  as  the  vendor  retains  posses-  be    ascertained  :    Rapelye    v.    Mackie,    6 

Bion  :  Davis  r.  Bigler,  62  Id.  242.  Cowen    250;    Joyce    v.    Adams,    4    Seld. 

As  a  general  rule,  the  goods  sold  must  291  ;   even  in  a  case  where  the  vendee  has 

be  ascertained  and  designated,  and  for  this  resold    the    goods    before    they   had  beeu 

purpose,  where  they  form  a  part  of  a  stock,  separated,  it  was  held   that  the  property 

or   are   mixed  with  any  quantity  of  like  had  not  passed  from  the  original  vendor : 

goods,  they  must  be  separated  therefrom  Hunter   v.   Hutchinson,  1  Penn.  St.   140  ; 

before  the  property  in  them  can  pass ;  and  Scudder     v.     Worster,      11      Cush.     573. 

generally,  if  anything  remains  to  be  done  Where,   however,   a  horse  was   sold  at  a 

to  goods  for  the   purpose  of  ascertaining  certain  price,   or  such   other  price   as   a 

their  price,  such  as  weighing,  measuring,  third  person   should  name,  and  the   third 

or  testing  them,  the  price  depending  upon  party  refused  to  name  a  price,  it  was  held 

their  quality  or  quantity,  the  performance  that  the  sale  was  determined   at  the  sum 

of  the?-e  acts,  would  seem  to  be  a  condition  mentioned   by  the  parties:  HoUingsworth 

precedent  to  the  transfer  by  a   sale  of  the  v.  Bates,  2  Blackf.  340;  Moore  v.  Piercy, 

properly  in  them,  although  the  individual  l    Jones     131  ;    so,    too,    in    the    case    of 

goods  be  ascertained  ;  Hutchinson  v.  Hun-  a  sale  of  625  bags  of  corn,  part  of  a  larger 

ter,   7   Penn.   St.    140  ;    Hale    v.  Huntley,  lot,  being  the  625   bags  which  should  first 

21    Vt.    50;    Stevens    et    al.   v.    Ewe,    10  arrive  in  port,  it  was   held  that  this  was  a 

Barb.  S.  C.  95;   Dixon  v.  Myers  et  al.,   7  sufficient   separation  to  pass   the   title  to 

.   Gratt.    240;    Cunningham    v.    Ashbrook,  the  625  bags:   Sahlman  v.  Mills,  3  Strob. 


20  Mo.  553 ;  Banchor  v.  Warren,  33 
N.  H.  183  ;  Oilman  v.  Hill,  36  N.  H. 
311;  Nicholson  v.  Taylor,  31  Penn.  St. 
128;  Chapin  v.  Potter,  1  Hilton  366; 
but  weighing,  measuring,  or  setting  apart, 
has  been   held  to  be  essential  only  when 


necessary  to  define   the   subject-matter  of    Harris,  31  Miss.  257. 


384.  And  a  contract  to  sell  all  the 
corn  in  a  certain  mill  house,  and  a  pay- 
ment of  the  part  of  the  money,  vests  the 
property  in  the  buyer,  even  though  it  was 
not  measured  out  to  him  :  Morgan  v.  Per- 
kins, 1    Jones    171.      And    see  Jordan  v. 


the  contract:  Leonard  v.  Winslow,  2 
Grant's  Cas.  139;  Penna.  R.  R.  v.  Hughes, 
39  I'enn.  St.  521;  and  delivery  of  a  bill 
of  sale  has  been  held  a  sufficient  identifi- 
cation :  Barrows  v.  Harrison,  12  Iowa 
588. 


Where  a  paper  manufacturer  sold  2000 
pieees  of  wall  paper,  a  part  of  a  larger  lot, 
all  of  the  same  size,  description,  and  value, 
and  the  purchaser  paid  the  price,  and  took 
away  at  the  time  1000  pieces,  it  being 
agreed  that  the  other    1000  should  remain 


Wlicre  goods  were   partly  measured  off,  until   called  for,  but  were   not  selected  by 

and   subsequently  stolen,  those  measured  the  buyer,  nor  separated  and  set  aside  for 

were  held  to  be  the  property  of  the  buyer,  him,  it  was  held  that  no   property  passed; 

and    the    remainder  as   belonging   to    the  and  that,  even  if  there  had  been  no  other 

seller:    Crawford    f.  Smith,    7    Dana    59;  pieces  on  hand  than  those  in  the  particular 

but  «lMTe  a  number  of  barges  of  oil  were  lot,  and   no  more  than  the   exact  number, 

purchased  at  so  much  per  barrel,  and  the  they   would   not    have    passed  without  a 


OF   THE    ALIENATION   OF   CHOSES    IN   POSSESSION. 


40 


benefit.(?)^     It  is  not,  however,  necessary  that  a  price  should  actually  be 
named.     A  contract  to  sell  without  naming  a  price  is  a  contract  to  sell  at 

(l)  Atkinson  v.  Bell,  3  B.  &  C.  277  (E.  C.  L.  R.   vol.   10)  ;  Wilkins  v.  Bromhead, 
5  M.  &  G.  963,  973  (E.  C.  L.  R.  vol.  44). 


specific  act  of  appropriation,  equivalent  to 
a  delivery  in  contemplation  of  law.  But 
if  the  paper  had  been  sold  in  a  separate 
lot,  or  in  gross,  or  if  the  pieces  had  been 
separated  from  the  rest,  and  pointed  out 
to  the  buyer  as  his  2000,  the  property 
would  have  passed,  though  there  had  been 
a  small  excess  :  Golder  v.  Ogden,  15  Penn. 
St.  528. 

In  determining  when  the  title  to  goods 
which  are  the  object  of  a  contract,  passes, 
regard  is  of  course  to  be  had  to  the  inten- 
tion of  the  parties,  and  if  by  anything  it 
appears  that  it  was  designed  that  the  title 
should  pass,  notwithstanding  there  was 
still  something  to  be  done,  the  contract 
will  be  determined  in  accordance  with  that 
intention:  Amber  v.  Hamlet,  12  Pick. 
76;  Leedom  v.  Phillips,  I  Yeates  529; 
Bowen  v.  Burk,  13  Penn.  St.  148;  Cle- 
mens V.  Davis,  7  Id.  263 ;  Riddle  v. 
Varnum,  20  Pick.  280;  Harris  v.  Smith, 
3  S.  &  R.  20;  Denis  v.  Alexander,  3 
Penn.  St.  50  ;  Boswell  v.  Green,  1  Dutch. 
390;  Beller  v.  Block,  19  Ark.  566  ;  Chapin 
V.  Potter,  1  Hilton  366 ;  Sewall  i'.  Eaton, 
6  Wis.  490;  Leonard  v.  Winslow,  2 
Grant's  Cas.  139;  Susquehanna  Co.  v. 
Finney,  58  Penn.  St.  200. 

Even  the  converse  of  the  proposition, 
that  delivery,  actual  or  constructive,  is 
necessary  to  pass  title  where  goods  are 
sold,  is  not  always  true,  for  in  the  case  of 
an  actual  delivery  of  personal  chattels 
after  a  sale,  the  property  may  not  pass,  as 
when,  for  instance,  the  delivery  has  been 
conditional :  Andrew  v.  Dieterick,  14  Wend. 
31;  Davis  v.  Hill,  3  N.  H.  382;  Young 
V.  Austin,  6  Pick.  280  ;  Bennett  v.  Piatt, 
9  Id.  558;  Lester  v.  McDowell,  18  Penn. 
St.  91;  Cutwater  v.  Dodge,  7  Cowen 
85 ;  Riddle  v.  Varnum,  20  Pick.  280 ; 
Houdlette  v.  Tallman,  14  Maine  400  ; 
Devane  v.  Fennell,  2  Ired.  36 ;  Deshon 
V.  Bigelow,  8  Gray  159 ;  Henderson  v. 
Lauck,  21  Penn.  St.  359;  Sargent  v. 
Metcalf,    5    Gray    306 ;    Fleeman   v.    Mc- 


Kean,  25  Barb.  474 ;  Herring  v.  Hop- 
pock,  3  Duer  20 ;  Hunter  v.  Warner, 
1  Wis.  141  ;  Bryant  v.  Crosby,  36  Maine 
562 ;  McFarland  v.  Farmer,  42  N.  H. 
386 ;  for  delivery  is  but  the  evidence  of  a 
transfer  of  title  :  McCandlish  v.  Newman, 
22  Penn.  St.  460 ;  Henderson  v.  Lauck, 
21  Id.  359  ;  hence,  where  it  was  agreed 
that  the  plaintiffs  should  deliver  to  a  rail- 
road a  certain  quantity  of  iron  rails,  which 
should  be  laid  in  a  designated  part  of  the 
tract,  and  upon  payment  should  become 
the  property  of  the  road,  and  the  rails 
were  laid,  it  was  held  that  they  did  not 
become  the  property  of  the  road  until  paid 
for,  and  that  the  plaintiffs  were  entitled  to 
hold  them  against  subsequent  mortgagees 
of  the  roa'd :  Haven  v.  Emery,  33  N.  H. 
66 ;  but  ordinarily  in  case  of  a  condi- 
tional sale,  with  delivery,  there  is  no  lien 
for  the  purchase-money  :  Haak  v.  Linder- 
man,  64  Penn.  St.  499. 

As  a  general  test  of  the  transfer  of  the 
title  of  goods  by  a  sale,  it  is  only  neces- 
sary to  inquire  whether  the  vendee  can 
bring  trover  or  replevin  for  them,  or  take 
them  into  his  possession,  without  com- 
mitting a  trespass :  Lester  v.  McDowell, 
18  Penn.  St.  91 ;  McDowell  v.  Hewett, 
15  Johns.  349;  Smith  v.  Smith,  5  Penn. 
St.  254 ;  Leedom  v.  Phillips,  1  Yeates 
529.  See  also,  generally,  Eagle  v. 
Eichelberger,  6  Watts  29  ;  Brewer  v. 
Smith,  3  Greenl.  44;  Mason  v.  Thomp- 
son, 18  Pick.  305;  Barnard  v.  Poor,  21 
Id.  378;  Dunlap  v.  Berry,  4  Scam.  327; 
Frazier  v.  Hilliard,  2  Strob.  309 ;  Wil- 
liams V.  Allen,  10  Humph.  337;  Lehigh 
Co.  V.  Field,  8  W.  &  S.  232  ;  Macomber 
V.Parker,  13  Pick.  175;  Scott  v.  Wells, 
6  W.  &  S.  357;  Waldo  v.  Belcher,  11 
Ired.  609  ;  Sawyer  v.  Nichols,  40  Maine 
212;  Scudder  v.  Worster,  11  Cush.  573; 
Penn.  R.  R.  v.  Hughes,  39  Penn.  St. 
521. 

1  See  ante,  note  (1),  p.  36. 


40  OP   CnOSES   IN   POSSESSION. 

a  reasonable  j^rice ;  and  tlic  property  in  goods  may  well  pass  by  such  a 
contract.(wj)  So  a  contract  to  sell  by  weight  may  pass  the  property  in 
the  goods  before  they  are  actually  weighed,  if  such  appear  to  be  the  in- 
tention of  the  parties.  (r<) 

But  with  regard  to  goods  of  the  value  of  lOZ.  or  upwards,  additional 
requisites  have  been  enacted  by  the  seventeenth  section  of  the  Statute  of 
Frauds,(())  which  provides,  "  that  no  contract  for  the  sale  of  any  goods, 
wares  and  merchandises  for  the  price  of  lOZ.  sterling  or  upwards  shall  be 
allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the  goods  so 
sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to  bind 
the  bargain,  or  in  part  of  payment,  or  that  some  note  or  memorandum 
in  writing  of  the  said  bargain  be  made  and  signed  by  the  parties  to  be 
charged  by  such  contract,  or  their  agents  thereunto  lawfully  authorized."^ 
And  by  a  modern  statute,(jp)  this  enactment  "shall  extend  to  all  con- 
tracts for  the  sale  of  goods  of  the  value  *of  101.  sterling  and  up- 
L  -J  wards,  notwithstanding  the  goods  may  be  intended  to  be  delivered 
at  some  future  time,  or  may  not  at  the  time  of  such  contract  be  actually 
made,  procured  or  provided,  or  fit  or  ready  for  delivery,  or  some  act  may 
be  requisite  for  the  making  or  completing  thereof,  or  rendering  the  same 
fit  for  delivery." 

The  above  section  of  the  Statutes  of  Frauds  has  been  interpreted  by  a 
vast  number  of  cases  decided  on  almost  every  one  of  the  phrases  it  con- 
tains.(7)  The  chief  difficulty  has  been  to  determine  the  exact  meaning  of 
the  acceptance  of  part  of  the  goods  and  actual  receipt  of  the  same, 
required  on  the  part  of  the  buyer,  and  to  ascertain  in  each  particular 

(m)  Joyce  v.  Swaim,  17  C.  B.  N.  S.  84  (E.  C.  L.  R.  vol.  112). 
(n)  Turby  v.  Bates,  2  H.  &  N.  200.  (o)  29  Car.  II.  c.  3. 

(p)  Stat.  9  Geo.  IV.  c.  14,  s.  7.  See  Hoadley  v.  M'Laine,  10  Bing.  482,  486  (E.  C.  L. 
R.  vol.  25). 

(q)  See  Smith's  Mercantile  Law  468  et  seq.  5th  ed. ;  495  et  seq.  6th  ed.^ 

>  The  provision  of  the  English  Statute  at  $50  ;  in  New  Hampshire  at  $33  33  ;  in 
of  Frauds,  on  this  subject,  is  in  force  in  Vermont  at  $40,  and  in  California  at  $200, 
South  Carolina  and  Georgia:  Cason  v.  while  in  Florida  all  contracts  for  the  sale 
Cheely  et  al.,  6  Geo.  554;  and  in  many  of  of  personal  property,  no  mailer  what  may 
the  States  of  the  Union,  analogous  laws  be  the  value,  must  be  in  writing.  In 
arc  in  operation,  by  which  contracts  for  Alabama,  Delaware,  Kentucky,  Maryland, 
the  sale  of  chattels,  beyond  a  certain  Ohio,  Pennsylvania  and  Virginia,  the 
value,  are  declared  void,  unless  there  be  seventeenth  section  of  the  English  statute, 
delivery,  or  earnest,  or  the  contract  be  in  respecting  the  sale  of  chattels  above  the 
writing;  thus,  in  Arkansas,  Maine,  and  value  of  10/.,  is  not  in  force;  nor  does  it 
New  Jersey,  this  sum  is  fixed  at  $30;  in  apply  in  North  Carolina,  Texas,  or  Mis- 
Massachusetts,  Michigan,  and  New  York,  souri. 


OF   THE   ALIENATION   OF   CHOSES   IN    POSSESSION.  41 

case  whether  such  acceptance  and  actual  receipt  have  taken  phice  or  not. 
The  acceptance  required  appears  not  to  be  necessarily  such  as  shall  pre- 
clude the  purchaser  from  afterwards  objecting  to  the  quality  of  the 
goods,(r)  and  it  may  be  prior  to  the  receipt.(s)^  Actual  receipt  seems, 
according  to  the  great  preponderance  of  authority,  to  mean  receipt  of  the 
possession  of  the  goods,  and  to  be  merely  correlative  to  delivery  of  pos- 
session on  the  part  of  the  vendor.(^)  There  must,  therefore,  be  an  actual 
transfer  of  the  article  sold,  or  some  part  thereof,  by  the  seller,  and  an 
actual  taking  possession  of  it  by  the  buyer. (m)  The  possession  of  a 
simple  bailee  is,  however,  as  we  have  seen,(y)  constructively  the  posses- 
sion of  the  bailor.  If  therefore  the  vendor  should  change  his  character 
and  become  the  bailee  of  the  purchaser,  there  may  be  a  suiBcient  actual 
receipt  in  law  on  the  part  of  the  *purchaser,  although  the  goods  r>,=  f  ^-i 
still  remain  in  the  possession  of  the  vendor.(2;)  So  if  any  part  of 
the  goods  be  delivered  to  an  agent  of  the  vendee,  or  to,a  carrier  named 
by  him,  this  is  a  sufficient  receipt  by  the  vendee  himself :(?/)  and  if  the 
goods  should  be  in  the  possession  of  a  warehouseman  or  wharfinger  at  the 
time  of  sale,  the  receipt  by  the  purchaser  of  a  delivery  order,  provided 
it  were  coupled  with  the  assent  of  the  bailee,  would  be  a  sufficient  receipt 
of  the  goods  within  the  statute. (2)  The  wharfinger  holds  the  goods 
as  the  agent  of  the  vendor,  until  he  has  agreed  with  the  purchaser  to 

(r)  Morton  v.  Tibbett,  15  Q.  B.  428  (E.  C.  L.  R.  vol.  69) ;  Bushell  v.  Wheeler,  15  Q. 
B.  442  (E.  C.  L.  R.  vol.  69)  ;  Currie  v.  Anderson,  2  E  &  E.  592,  600  (E.  C.  L.  R. 
vol.  105).  See,  however,  Hunt  v.  Hecht,  8  Exch.  814;  Nicholson  v.  Bower,  1  E  & 
E.  72  (E.  C.  L.  R.  vol.  102)  ;  Smith  v.  Hudson,  Q.  B.  11  Jur.  N.  S.  622  ;  6  B.  &  S. 
431  (E.  C.  L.  R.  vol.  118). 

(s)  Cusack  V.  Robinson,  I  B.  &  S.  299  (E.  C.  L.  R.  vol.  101). 

{()  Smith's  Mercantile  Law,  472,  n.  (c/),  5th  ed. ;  499,  n.  (m),  6th  ed.  Saunders  v. 
Topp,  4  Ex.  Rep.  390. 

(m)  Baldy  v.  Parker,  2  B.  &  C.  37,  41  (E.  C.  L.  R.  vol.  9). 

(v)  Ante,  p.  27. 

{x)  Castle  V.  Sworder,  Exch.  Chamb.  6  H.  &  N.  828,  reversing  the  judgment  of  the 
Court  of  Exchequer,  5  H.  &  N.  281. 

(«/)  Dawes  v.  Peck,  8  T.  Rep.  330  ;  Hart  v.  Bush,  1  E.  B.  &  E.  494,  498  (E.  C.  L.  R. 
vol.  96).  See  however  Norman  v.  Phillips,  14  M.  &  W.  277  ;  Coombs  v.  Bristol  and 
Exter  Railway  Company,  3  H.  &  N.  510. 

(2)  Bentall  v.  Burn,  3  B.  &  C.  423  (E.  C.  L.  R.  vol.  10) ;  Pearson  v.  Dawson,  1  E. 
B.  &  E.  448  (E.  C.  L.  R.  vol.  96).     See  ante,  p.  37. 


1  In  Georgia  it  has  been  held  that  there  declaration  of  the  buyer,  that  he  will  take 

is  no  acceptance,  so  long  as  the  buyer  has  the   goods,  then  left  for  him  at  another 

the    right    to    object  to    the    quantity   or  place,  at   a  future    day,  can   be   held  an 

quality:    Lloyd  v.   Wright,    25  Geo.    215.  acceptance,  or  an  admission  of  acceptance  : 

And  in  New  Hampshire,   no   promise    or  Shepherd  v.  Pressey,  32  N.  H.  49. 


42  OF  cnosKS  in  possession. 

hoM  for  liim.  Then,  and  not  till  then,  the  wharfinger  is  the  agent  or 
bailee  of  tiie  purehuser,  and  the  possession  of  such  Aviiarfinger  is  that  of 
the  purchaser ;  and  then  only  is  there  a  constructive  delivery  to  bim,(a) 

The  re.|uisitions  of  the  statute,  it  will  be  observed,  are  in  the  alter- 
native. Either  the  buyer  must  accept  part  of  the  goods  sold,  and 
actuallv  receive  the  same,  or  he  must  give  something  in  earnest  or  in 
part  of  pavment,  or  some  note  or  memorandum  in  writing  must  be 
signed.  Tlie  two  former  alternatives  are  left  as  they  were  before  the 
statute ;  but  the  last  is  a  new  requisition  which  must  be  observed  in  the 
absence  of  cither  of  the  former.(i)  The  effect  of  the  statute,  therefore, 
is  to  abolish  tender  and  mere  words  as  sufficient  for  a  sale,  and  to  sub- 
stitute for  them  the  more  exact  evidence  of  a  note  or  memorandum  in 
writinr'.(c)  But  as  the  ^memorandum  may  be  signed  by  an  agent 
L  '^J  lawfully  authorized,  the  bought  or  sold  notes  given  by  a  broker 
are  a  sufficient  memorandum  within  the  meaning  of  the  statute.(c?)  And 
it  is  held  that  the  entry  of  a  purchaser's  name  by  an  auctioneer's  clerk 
at  an  auction  is  also  sufficient  to  satisfy  the  statute,  as  the  clerk  is,  for 
that  purpose,  the  authorized  agent  of  the  purchaser.(e)  But  one  of  the 
contracting  parties  to  a  sale  cannot  be  the  agent  for  the  other  for  the 
purpose  of  signing  a  memorandum  of  the  bargain. (/) 

If  the  agreement  is  not  to  be  performed  within  the  space  of  one  year 
from  the  making  thereof,  then,  however  small  be  the  value  of  the  goods, 
no  action  can  be  brought  upon  it,  unless  the  agreement,  or  some  memo- 
randum or  note  thereof,  shall  be  in  writing,  and  signed  by  the  party  to 
be  charged  therewith,  or  some  other  person  thereunto  by  him  lawfully 

[a)  Farina  v.  Ilornc,  IG  M.  &  W.  119,  123. 

(A)  Lcc  V.  Griffith,  1  B.  &  S.  272  (E.  C.  L.  R.  vol.  101);  Wilkinson  v.  Evans, 
Law  Rep.  1  C.  P.  407.     See  Vanderbergh  v.  Spooner,  Law  Rep.  1  Ex.  31G. 

(c)  Every  meniora-.-.dum,  letter,  or  agreement  made  for  or  relating  to  the  sale  of  any 
goods,  wares  or  merchandise,  is  exempt  from  all  stamp  duty ;  stat.  55  Geo.  III.  c.  184, 
Sched.,  Part  I.  tit.  Agreement.' 

(rf)  Grove  v.  Aflalo,  6  B.  &  C.  117  (E.  C.  L.  R.  vol.  13)  ;  Barton  v.  Crofts,  16  C. 
B.N.  S.  n  (E.  C.  L.  R.  vol.  111). 

(«)  Bird  f.  Boulter,  4  B.  &  Ad.  443  (E.  C.  L.  R.  vol.  24). 

{/)  Farebrother  v.  Simmons,  5  B.  &  Aid.  333  (E.  C.  L.  R.  vol.  7). 

>  The  Stamp  Duty  under  the  Internal  or  piece  of  paper,  five  cents  is  to  be  paid 
Revenue  Act,  is  five  cents  for  every  sheet  for  every  additional  agreement  or  Con- 
or piece  of  paper  upon  which  an  agree-  tract:  Act  of  Congress  of  June  30,  1864, 
mentor  contract  shall  be  written,  provided  sec.  170,  Schedule  B.,  title  Agreement,  2 
that  if  more  than  one  agreement  or  con-  Brightly's  U,  S.  Dig.,  p.  377,  sec.  356. 
tract  shall  be  written  on  the  same  sheet 


OP   THE   ALIENATION   OF   CHOSES    IN    POSSESSION.  43 

authorized.^     This  is  another  provision  of  the  Statute  of  Frauds,(</)  and 
will  be  hereafter  noticed  more  particularly. 

Although  the  property  in  goods  sold  passes,  as  we  have  seen, (A)  from 
the  vendor  to  the  vendee,  immediately  upon  the  execution  of  a  valid  con- 
tract for  sale,  yet  the  possession  of  the  goods  of  course  remains  with  the 
vendor  until  he  deliver  them,  which  he  is  bound  to  do  when  the  purchaser 
is  ready  to  pay  the  price,(/)  but  not  before.(/i;)  And  so  long  as  the  ven- 
dor retains  actual  or  constructive  possession  of  the  goods,  he  has  a  lien 
upon  them  for  so  much  of  the  purchase-money  as  may  remain  *un-  r^^^^-i 
paid.(Z)  But  when  the  goods  are  once  delivered  by  the  vendor 
out  of  his  own  actual  or  constructive  possession,  his  lien  is  gone ;  for  lien 
in  law  is,  as  we  have  seen,(m)  merely  a  right  to  retain  possession,  and 
not  to  recover  it  when  given  up. 

Under  certain  circumstances,  however,  the  vendor  of  goods  has  a  ri^ht 
to  resume  their  possession,  with  which  he  had  previously  parted  under  a 
contract  for  sale.  This  right  is  called  the  right  of  stoppage  in  transitu  ; 
and  it  occurs  when  goods  are  consigned  entirely  or  partly(w)  on  credit 
from  one  person  to  another,  and  the  consignee  becomes  bankrupt  or  insol- 
vent before  the  goods  arrive.^     In  this  event  the  consignor(o)  has  a  right 

[g]  29  Car.  II.  c.  3,  s.  4.  {h)  Ante,  p.  38. 

{i)  Rawson  v.  Johnston,  1  East  203. 

{k)  Bloxam  v.  Sanders,  4  B.  &  C.  941  (E.  C.  L.  R.  vol.  10). 

{I)  Dixon  V.  Yates,  5   B.  &  Ad.  313  (E.  C.  L.  R.  vol.  27) ;   Lackington  v.  Atherton,  7 
M.  &  G.  360  (E.  C.  L.  R.  vol.  49). 
{m)  Ante,  p.  28. 
(n)  Hodgson  v.  Loy,  7  T.  R.  440.  (o)  Bird  v.  Brown,  4  Ex.  Rep.  786. 

1  A  similar  provision  to  that  stated  in  467  ;  and,  3.  The  transiius  of  the  goods 
the  text,  and  transcribed  from  the  English  must  not  have  been  determined,  by  a  de- 
statute  of  Frauds  and  Perjuries,  has  been  livery  to  the  vendee,  either  actual  or 
incorporated  into  the  statute  laws  of  constructive :  Newhall  v.  Vingas,  1  Shep. 
almost  all  the  states.  The  statutes  of  93  ;  Buckley  v.  .Furness,  17  Wend. 
North  Carolina  and  Pennsylvania  are,  504;  Covell  t>.  Hitchcock,  23  Wend.  611; 
however,  an  exception  to  this  rule,  and  do  s.  c.  20  Id.  167  ;  Mottram  v.  Heyer,  1 
not  contain  this  restriction  upon  contracts.  Denio    483,   s.   c.    5    Id.  629  ;    Sawyer  v. 

2  Three  circumstances  must  concur,  in  Joslin,  20  Vt.  172  ;  Frazier  v.  Hilliard, 
order  that  the  vendor  of  goods  may  have  2  Strobh.  309  ;  Donath  v.  Broomfaead, 
the  right  of  stoppage  in  transitu.  1.  The  7  Penn.  St.  301 ;  Lane  v.  Robinson,  18 
vendee  must  have  become  insolvent :  Jor-  B.  Mon.  623  ;  White  v.  Welsh,  38  Penn. 
dan  V.    James,    5  Ham.     88  ;    Stanton    v.  St.  396. 

Eager,  16  Pick.  467  ;    White  v.  Welsh,  38  1st.  The  vendee  must  have  become  in- 

Penn.    St.   396.     2.    The   purchase-money  solvent.     It  is  only  where  the  vendee  be- 

must  not  have  been  paid  :  Jordan  z).  James,  comes   insolvent  after  the  sale  has  been 

5  Ham.   88 ;    Stanton  v.  Eager,   16   Pick,  effected,   and    before    delivery,   that   the 


44 


OF   CIIOSES   IN   POSSESSION. 


to  direct  the  captain  of  the  ship,  or  other  carrier,  to  deliver  the  goods  to 
himself  or  his  agent  instead  of  to  the  consignee,  who  has  thus  become 


right  of  stoppage  in  transiHi  exists.  If  the 
vendee  was  insolvent  at  the  time  of  the 
consi<rnment,  whether  that  fact  be  known 
or  unknown  to  the  consignor,  the  right  of 
retaking  the  goods  does  not  exist :  Rogers 
V.  Thomas,  20  Conn.  53  ;  Buckley  v. 
Furness,  15  Wend.  137  ;  Naylor  v.  Den- 
nie,  8  Pick.  198.  But  see  Benedict  v. 
Schaettle,  12  Ohio  N.  S.  515  ;  Reynolds 
V.  Roston,  &c.,  R.  R.,  43  N.  H.  580.  To 
constitute  insolvency,  it  is  not  necessary 
that  the  consignees  should  have  been  de- 
clared bankrupt,  or  taken  the  benefit  of 
the  insolvent  .laws  ;  any  competent  evi- 
dence that  will  satisfy  a  jury  is  sufficient : 
Hayes  v.  Mouille,  14  Penn.  St.  48.  But 
there  must  be  some  visible  change  in  the 
pecuniary  situation  of  the  vendee,  and 
some  open  notorious  act  on  his  part,  cal- 
culated to  affect  his  credit ;  some  change 
in  his  apparent  circumstances  which  would 
operate  as  a  surprise  on  the  vendor,  and 
which,  if  he  had  known,  he  would  not 
have  given  credit  to  the  vendee  :  Rogers 
V.  Thomas,  20  Conn.  63  ;  such  as  pecu- 
niary embarrassment,  and  probable  ina- 
bility to  pay  his  debts  :  Secomb  v.  Nutt,  14 
B.  Mon.  324.  The  fact  of  the  goods  hav- 
ing been  sold  on  credit,  will  not  deprive  the 
consignor  of  his  right :  Ilslej'  v.  Stubbs,  9 
Mass.  65  ;  Stubbs  v.  Lund,  7  Id.  453  ; 
Newhall  v.  Vingas,  1  Shep.  93  ;  Atkins 
V.  Colby,  20  N.  H.  154  ;  nor  charging  com- 
mission for  doing  the  business,  nor  the 
acceptance  of  part  payment ;  nor  is  he 
obliged  to  refund  th^payment  or  pay  the 
freight. 

2d.  The  purchase-money  must  not  have 
been  paid  ;  but  the  taking  of  bills  on  the 
vendee,  drawn  by  his  agent,  will  not 
defeat  the  right.  When,  however,  goods 
are  purchased  and  paid  for  by  the  order, 
note,  or  accepted  bill  of  a  third  party, 
without  the  endorsement  or  guarantee  of 
the  purchaser,  it  has  been  held  that  the 
vendor  has  no  right  of  stoppage  in  transitu  : 
32  Vt.  58. 

3d.    The    travsitus    of    the    goods    must 


not  have  been  determined  by  delivery 
to  the  vendee,  either  actual  or  construc- 
tive. 

The  question  of  delivery  is  often  diffi- 
cult to  determine,  and  must  necessarily 
depend,  to  a  certain  extent,  upon  the  inter- 
pretation of  the  contract  in  each  particular 
case  ;  but  it  has  been  held,  that  the  de- 
livery to  the  vendee  of  a  bill  of  sale,  will 
defeat  the  vendor's  right  of  stopping  the 
goods  :  Davis  v.  Bradley,  24  Vt.  55  ; 
Ridgway  v.  Bowman,  7  Cush.  268  ;  and, 
where  the  vendee  intercepted  the  goods 
on  their  passage,  before  they  had  reached 
their  ultimate  destination,  and  took  pos- 
session of  them,  it  was  held  that  the  de- 
livery was  complete  :  Jordan  v.  James,  5 
Ham.  88  ;  Secomb  v.  Nutt,  14  B.  Mon. 
324 ;  on  the  other  hand,  if  the  goods 
on  the  passage  be  seized  by  a  creditor  of 
the  purchaser,  that  will  not  deprive  the 
vendor  of  his  right  of  stoppage  :  Buckley 
V.  Furness,  15  Wend.  137  ;  Wood  v. 
Yeatman,  15  B.  Mon.  270 ;  Kitchen  v. 
Spear,  30  Vt.  545  ;  O'Brien  v.  Norris, 
16  Md.  122;  and,  although  goods  may 
come  to  the  hands  of  a  carrier  of  a  pur- 
chaser, at  a  point  intermediate  between 
the  residences  of  the  vendor  and  vendee, 
that  will  not  be  considered  such  a  delivery 
to  the  vendee,  as  to  deprive  the  vendor  of 
his  right :  Buckley  v.  Furness,  15  Wend. 
137;  Cabeen  v.  Campbell,  30  Penn.  St. 
254  ;  Pottinger  v.  Hecksher,  2  Grant's  Cas. 
309.  So  of  the  possession  of  a  warehouse- 
man, at  a  point  intermediate  between  con- 
signor and  consignee,  even  though  it  may 
be  mentioned  as  the  place  where  the 
goods  are  to  be  sent,  provided  it  is  not 
their  ultimate  destination:  Covellv.  Hitch- 
cock, 23  Wend.  611;  s.  c.  20  Id.  167; 
Harris  v.  Pratt,  17  N.  Y.  249;  but  if 
goods  are  sent  to  a  forwarding  merchant, 
to  await  in  his  hands  the  instructions  of 
the  purchaser  respecting  any  further  tran- 
sit, their  transit  is  at  an  end  when  they 
reach  his  hands  r  Biggs  v.  Barry,  2  Cur- 
tis   C.    C.    259  ;     Guilford    v.    Smith,    30 


OF    THE    ALIENATION    OF    CHOSES    IN    POSSESSION. 


44 


unable  to  pay  for  them.  The  right  of  stoppage  in  transitu  was  first 
allowed  and  enforced  only  by  the  Court  of  Chancery,  which,  in  the  exer- 
cise of  its  equitable  jurisdiction,  considered  that,  under  the  circumstances 
above  mentioned,  it  was  very  allowable  in  equity  for  the  consignor  to  get 
his  goods  again  into  his  own  hands.(^:>)  But  the  right  was  subsequently 
acknowledged  by  the  courts  of  law  ;  and  it  is  now  constantly  enforced  by 
them.  As  this  right  was  originally  of  equitable  origin  it  cannot  be  ex- 
pected to  depend  on  strictly  legal  principles  ;  and  the  doctrines  of  law  on 
this  particular  subject  are  in  fact  unlike  its  usual   doctrines  on  other 

(p)  Wiseman  v.  Vandeputt,  2  Vern.  203;  Snee  v.  Prescot,  1  Atk.  245. 


Vt.  49  ;  Pottinger  v.  Hecksher,  2  Grant's 
Gas. .309,  and  see  also  Cartwright  v.  Wil- 
merding,  24  N.  Y.  521  ;  Hoover  v.  Tib- 
bits,  13  Wis.  79  ;  Blackman  v.  Pierce, 
23  Cal.  508  ;  even  where  the  goods, 
transported  by  water,  were  in  the  port 
where  the  vendee  resided,  and  had  been 
there  attached  by  creditors,  but  had  not 
yet  come  to  the  actual  possession  of  the 
vendee,  it  was  held  that  the  right  of  stop- 
page remained:  Naylor  «.  Dennie,  8  Pick. 
198  ;  but  unless  it  is  provided  in  the 
bill  of  lading,  that  the  consignee  shall 
have  possession  at  the  conclusion  of  the 
voyage,  the  right  of  stoppage  is  concluded 
on  the  shipment :  Stubbs  v.  Lund,  7  Mass. 
453. 

Where,  before  the  delivery  of  the  goods, 
they  have  been  bona  fide  sold  by  the  origi- 
nal purchaser,  so  that  all  the  right  is  in  a 
third  person,  it  has  been  held  that  the 
vendor's  right  of  stoppage  is  gone  ;  thus,  a 
bona  fide  assignment  by  endorsement  of  the 
bill  of  lading,  will  defeat  the  original  ven- 
dor's right :  Stanton  v.  Eager,  16  Pick. 
467.;  Stubbs  v.  Lund,  17  Mass.  453; 
Ilsley  V.  Stubbs,  9  Id.  65  ;  The  Mary  Ann 
Guest,  1  Blatch.  358  ;  Walton  v.  Ross, 
2  Wash.  C.  0.  283;  Boyd  v.  Mosely,  2 
Swan  661  ;  Dows  v.  Perrin  16  N.  Y. 
325  ;  V.  Lee  v.  Kimball,  45  Maine  172 ; 
Dowe  V.  Greene,  32  Barb.  490 ;  Schu- 
macker  v.  Eby,  24  Penn.  St.  521. 

So,  where  goods  are  shipped  on  account, 
and  at  the  risk,  of  the  consignee,  the  bill 
of  lading  transfers  to  him  the  legal  right 
to  the  goods,  subject  only  to  the  equitable 
right  of  the  consignor,  to  stop  them  in 
transitu,  if  they  are  not  paid  for,  and  the 


consignee  becomes  insolvent.  If  goods  be 
once  actually  delivered  to  a  servant  or 
correspondent  of  the  vendee,  authorized 
by  him  to  receive  them,  the  right  of  the 
vendor  to  stop  them,  in  the  event  of  the 
insolvency  of  the  vendee,  is  gone  :  Bolin  v. 
Huffnagle,  1  Rawle  9  ;  Biggs  v.  Barry, 
2  Curtis  C.  C.  259 ;  Cabeen  v.  Camp- 
bell, 30  Penn.  St.  254.  See  also  Wengar 
V.  Barnhait,  55  Id.  305. 

Where  the  vendor  shipped  the  goods  on 
board  of  a  packet  vessel,'  the  master  of 
which  refused  to  deliver  them,  on  his 
arrival,  to  the  vendee,  until  he  was  paid  a 
balance  due  to  him  for  antecedent  freights ; 
and  the  vendee  declining  to  pay  it,  the 
goods  were  brought  back  by  the  master  ; 
it  was  held,  that  the  vendor  had  still  the 
right  to  stop  the  goods,  the  transitus  not 
being  determined :  Allen  v.  Mercier,  1 
Ash.  103.  The  transitus  of  the  goods, 
and  the  right  of  stoppage  in  transitu,  is  de- 
termined by  delivery  to  the  vendee,  either 
actual  or  constructive,  or  by  circumstances 
which  are  equivalent  to  such  delivery : 
Donath  v.  Broomhead,  7  Penn.  St.  301. 
Where  goods  sold,  to  be-paid  for  on  de- 
livery, were  put  on  board  a  vessel  ap- 
pointed by  the  vendee,  not  to  be  trans- 
ported to  him,  or  delivered  for  his  use  at  a 
place  of  his  appointment,  but  to  be  shipped 
by  such  vessel  in  his  name,  from  his  place 
of  residence  and  business  to  a  third  per- 
son, it  was  held,  there  was  no  right  of 
stoppage  in  transitu  after  the  goods  were 
embarked  :  Rowley  v.  Bigelow,  12  Pick. 
307  ;  and  see,  also,  Stubbs  v.  Lund,  7 
Mass.  453 ;  HoUingsworth  v.  Napier,  3 
Caines  182. 


44  OF   CIIOSES   IN   POSSESSION. 

matters.  Thus  it  is  at  variance  with  the  general  principles  of  law  that 
a  man  should  be  allowed  to  transfer  to  another  a  right  which  he 
l*'^^^  has  not,  or  that  a  second  purchaser  should  *stand  in  a  better 
position  than  his  vendor  :{q)  but  the  consignee  of  goods  may,  by  endorsing 
the  bill  of  lading  to  a  bond  fide  endorsee,  defeat  the  consignor's  right  to 
stop  in  transitu.(r)  So  a  delivery  of  goods  into  the  possession  of  a 
carrier  appointed  by  the  vendee  is,  in  construction  of  law,  a  delivery  to 
the  vendee  himself,  and  divests  the  vendor's  lien  for  the  unpaid  purchase- 
money  ;(s)  but  until  the  transitus  is  completely  ended,  or  the  goods  come 
to  the  actual  possession  of  the  vendee,  the  vendor's  right  to  stop  them  in 
transitu  may  still  be  exercised  in  the  event  of  the  bankruptcy  or  insol- 
vency of  the  vendee, (0  unless  indeed  such  right  be  defeated,  as  we  have 
said,  by  a  bond  fide  endorsement  of  the  bill  of  lading.  Thus,  although 
by  the  sale  of  the  goods  the  property  in  them,  involving  the  risk  of  their 
loss,  passes  to  the  purchaser,  and  although  the  possession  of  them  be  de- 
livered to  a  carrier  named  by  him,  still  such  possession  may  be  resumed 
by  the  vendor  during  the  journey,  in  the  event  of  the  bankruptcy  or 
insolvency  of  the  vendee.  As  this  right  is  a  departure  from  legal  prin- 
ciples on  the  vendor's  behalf,  it  is  allowed  only  in  one  of  the  two  cases 
of  bankruptcy  or  insolvency,  by  Avhich  latter  term  appears  to  be  here 
meant  a  general  inability  to  pay,  evidenced  by  stopping  of  payment.(w) 
When  possession  of  goods  has  been  resumed  by  the  vendor  under  his 
right  of  stoppage  in  transitu,  he  is  restored  to  *the  lien  for  the 
L  -J  unpaid  purchase-money  which  he  had  before  he  parted  with  such 
possession  ;  but,  according  to  the  better  opinion,  the  contract  for  sale  is 
not  thereby  rescinded. (a;)^ 

{q)  Dixon  v.  Yates,  5  B.  &  Ad.  339  (E.  0.  L.  R.  vol.  2*1). 

(?•)  Lickbarrow  v.  Mason,  2  T.  R.  63  ;  1  H.  Bl.  357;  6  East  21;  1  Smith's  Leading 
Cases  388  ;  Jenkyns  v.  Usborne,  7  M.  &  G.  678,  699  (E.  C.  L.  R.  vol.  49). 

(s)  Dawes  v.  Peck,  8  T.  R.  390 ;  ante,  p.  40  ;  Wilmshurst  v.  Bowker,  in  error,  7  M.  & 
G.  882  (E.  C.  L.  R.  49). 

{()  Hoist  V.  Pownal,  1  Esp.  240  ;  Northey  v.  Field,  2  Esp.  613  ;  Jackson  v.  Nichol,  5 
New  Cas.,  508,  519.  See  Van  Casteel  v.  Booker,  2  Ex  Rep.  691  ;  Heinekey  v.  Earle, 
8  E.  &  B.  410  (E.  C.  L.  R.  vol.  92) ;  Smith  v.  Hudson,  Q.  B.  11  Jur.  N.  S.  622 ;  6  B.  & 
S.  431  (E.  C.  L.  R.  vol.  118)-;  Berndtson  v.  Strang,  L.  C.  16  W.  R.  1025  ;  Law  Rep. 
3  Ch.  588. 

(m)  See  Smith's  Merc.  Law,  525,  n.  (6),  5th  ed.  ;  554,  n.  6th  ed.  The  case  of  Wilms- 
hurst V.  Bowker,  5  New  Cas.  541;  7  Scott  561  ;  2  M.  &  G.  812  (E.  C.  L.  R.  vol.  40), 
was  reversed  in  error,  7  M.  &  G.  882  (E.  C.  L.  R.  vol.  49.) 

(z)  Bloxam  v.  Sanders,  4  B.  &  C.  949  (E.  C.  L.  R.  vol.  10) ;  1  Smith's  Leading  Cases 
432  ;  Schotsmans  v.  Lancashire  and  Yorkshire  Railway  Company,  Law  Rep.  2  Ch.  332, 
340;  36  L.  J.  N.  S.  361,  366. 

1  See  also  Wilmshurst  r.  Bowker,  5  Bing.  appears  never  to  have  been  expressly  de- 
N.  C.   641  (E.  C.  L.  R.  vol.   35,  218).    It      cided    in  England,  whether  the  efifect   of 


OF   THE   ALIENATION   OF   CHOSES    IN    POSSESSION.  46 

There  is  one  case  in  which  the  property  in  goods  passes  from  one 
person  to  another  by  payment  of  their  value  without  any  actual  sale. 
In  any  action  of  trover(?/)  the  plaintiff  is  entitled  to  damages  equal  to 
the  value  of  the  property  he  has  lost,  but  not  further,  unless  he  has  sus- 
tained any  special  damage.(2)  The  defendant  therefore,  having  paid  the 
amount  of  the  damages,  is  entitled  to  retain  the  goods  in  respect,  of 
which  the  action  is  brought ;  and  the  property  in  them  vests  in  him  ac 
cordingly.(a)^ 

The  alienation  of  personal  chattels  is  prohibited  to  be  made  by  certain 
persons  and  for  certain  objects.  And  first  with  respect  to  persons.  An 
alien  or  foreigner  is  under  great  restrictions  as  to  the  acquirement  of  real 
estate  ;{h)  but  with  respect  to  personal  chattels  he  stands  on  the  same 
footing  as  a  natural-born  subject ;  for  by  the  act  to  amend  the  laws  re- 
lating to  aliens,((?)  it  is  enacted((^)  that  from  and  after  the  passing  of  this 

{y)  See  ante^  p.  24. 

(z)  Bodley  v.  Reynolds,  8  Q.  B.  ^9  (E.  C.  L.  R.  vol.  55). 

(a)  Cooper  v.  Shepherd,  3  C.  B.  266,  272  (E.  C.  L.  R.  vol.  54).  See  Buckland  v 
Johnson,  C.  P.  18  Jur.  775  ;   15  C.  B.  145  (E.  C.  L.  R.  vol.  80). 

(6)  See  Principles  of  the  Law  of  Real  Property  56,  2d  ed.  ;  58,  3d  &  4th  eds. ;  61, 
5th  &  6th  eds.  ;  62,  7th  &  8th  eds. 

(c)  Stat.  7  &  8  Vict.  c.  66,  explained  by  stat.  10  &  11  Vict.  c.  83. 

{d)  Sect.  4. 

stoppage  in  transitu,  is  entirely  to  rescind  the  contract,  but  only  gives  or  restores  to 
the  contract  or  only  to  replace  the  vendor  the  vendor  a  lien  for  the  price :  Schots- 
in  the  same  position  as  if  he  had  not  parted  mans  v.  Lancashire,  &c.  R.  R.,  2  L.  R.  Ch. 
with  the  possession,  and  entitle  him  to  Ap.  Cas.  340.  The  following  American 
hold  the  goods  until  the  price  be  paid  authorities  support  the  doctrine  taken  in 
down:  Clay  v.  Harrison,  10  B.  &  C.  106  ;  the  text,  and  decide  that  this  right  of  stop- 
Wentworth  v.  Outhwaite,  10  M.  &  W.  452.  page  in  transitu,  does  not  proceed  on  the 
In  Bloxam  v.  Saunders,  10  E.  C.  L.  ground  of  rescinding  the  contract,  but  on 
R.  477,  the  defendants  refused  to  deliver  the  ground  of  an  equitable  lien ;  the  con- 
hops,  on  account  of  the  bankruptcy  of  the  tract  remains  in  force,  at  least  to  such  an 
vendee,  and  afterwards  resold  them.  The  extent  that  the  vendee  may  still  have  the 
court  held  that  the  plaintiffs  could  not  goods  by  paying  the  price  of  them  :  Jor- 
maintain  trover,  without  payment  or  tea-  dan  v.  James,  5  Ham.  88 ;  Rowley  v. 
der  of  the  price,  but  that  if  the  vendor  Bigelow,  12  Pick.  307;  Newhall  v.  Var- 
resold   the    hops   wrongfully,  they  might  gas,  3  Shep.  314. 

bring  a  special  action  for  the  injury  sus-  i  The  action  of  replevin  will  also  deter- 

tained  by  such  wrongful  sale,  and  recover  mine  the  title  to  personal  chattels,  for  it 

damages  to  the  extent  of  that  injury  ;  and  may  be  brought  wherever  one  claims  per- 

the  same  reasoning  was  held  in  Wilmhurst  sonal  property  in  the  possession  of  another. 

V.  Bowker,   which  was  also  an  action  of  See  Morris  on  the  Law  of  Replevin,  p.  68, 

trover,  in  which    a  similar   decision  was  &c.,  where  the  cases  are  collected, 

given.      These    cases    indicate    that    the  For   the    statutes  of  Pennsylvania   and 

Courts  have  shown  a  disposition  to  hold  other  states,  on  the  subject  of  Replevin,  see 

that  stoppage  in  transitu  does  not  rescind  Morris  on  the  Law  of  Replevin,  Appx. 


46  OF    CHOSES    IN    POSSESSION. 

act,  any  alien,  being  the  subject  of  a  friendly  state,  shall  and  may  take 
and  hold  by  purchase,  gift,  bequest,  representation  or  otherwise,  every 
species  of  personal  property,  *except  chattels  real,  as  fully  and 
L  J  effectually  to  all  intents  and  purposes,  and  with  the  same  rights, 
remedies,  exceptioTis,  privileges  and  capacities,  as  if  he  were  a  natural- 
born  subject  of  the  united  kingdom.  The  gift  of  an  infant  or  person 
under  the  age  of  twenty-one  years  is  voidable,(e)  and  that  of  an  idiot  or 
Innatic  appears  to  be  absolutely  void :(/)  in  this  respect  the  law  of  per- 
sonal chattels  is  now  the  same  as  that  of  real  estate.(,^)  Married  women 
also  are  incapable  of  making  any  disposition  of  personal  chattels,  except 
such  as  may  be  settled  in  equity  in  trust  for  their  own  separate  use  ;  for 
marriage  is  an  absolute  gift  in  law  of  all  the  wife's  choses  in  possession 
to  her  husband,  as  well  as  those  she  is  possessed  of  at  the  time  of  the 
marriage,  as  those  which  come  to  her  during  her  coverture.(/i)^  Persons 
convicted  of  treason  or  felony  forfeit  on  such  conviction  the  whole  of 
their  goods  and  chattels  to  the  crown  :  and  nothing  but  a  bond  fide  alien- 
ation for  a  valuable  consideration,  made  previously  to  conviction,  can 
avert  such  forfeiture. (^)     When  a  felony  is  not  capital,  the  punishment    ' 

(e)  Bac.  Abr.  tit.  Infancy  and  Age  (I),  3.       (/)  Ibid.  tit.  Idiots  and  Lunatics  (F). 

[g]  See  Principles  of  the  Law  of  Real  Property  57,  2d  ed. ;  59,  3d  and  4th  eds. ;  62, 
5th  ed. ;  63,  6th  ed. ;  64,  7th  &  8th  eds. 

[h)  Co.  Litt.  300  a;  1  Rop.  Husb.  and  Wife  169.  See  post,  the  chapter  on  Husband 
and  Wife. 

(i)  3  Rep.  82  b  ;  4  Bla.  Cora.  387,  388;  Perkins  v.  Bradley,  1  Hare  219;  Chowne  v. 
Baylis,  31  Beav.  351. 

1  By  an  act  of  the  legislature  of  Pennsyl-  A    similar    provision    is    found    in    the 

vania,  passed  April  11,  1848,  all  property,  statute  law  of  Massachusetts:  Gen.  Stats. 

whether  real  or  personal,  owned  by  or  be-  Mass.  (1860),  p.  537. 

longing. to  any  married  woman,  shall  be  In  California,  the  property  of  the  wife, 

owned,  used  and  enjoyed  by  her  as  her  own  acquired  before  the  marriage,  and  all  such 

separate  property,  freed  from  any  liability  as  shall  be  acquired  by  her  after  coverture, 

for  the  debts  of  her  husband :  Purd.  Dig.  by  gift,  bequest,  devise  or    descent,  may 

(1861),  p.  699.  become   her  separate  property,  by  a   full 

The  statutes  of  the  State  of  New  York  and  complete  inventory  thereof  being  made, 

contain  the  following  provision,  3  Revis.  and  acknowledged  and  proved  in  the  man- 

Stat.  of  N.  Y.,  Banks  &  Bro.'s  fifth  ed.,  p.  ner  required  by  law  for  a  conveyance  of 

239  :  "  The  real  and  personal  property  of  land  ;  but  property  acquired  in  any  other 

any  female,  who  may  hereafter  marry,  and  manner  than  above  specified,  during  cov- 

which  she  shall  own  at  the  time  of  mar-  erture,  by  the  wife,  shall  be  the  common 

riage,  and    the   rents,  issues,  and   profits  property  of  husband  and  wife.     But  in  all 

thereof,  shall  not  be  subject  to  the  dispo-  cases  the  husband  shall  have  the  manage- 

sal  of  her  husband,  nor  be  liable  for  his  ment  of  his  wife's  estate,  during  the  cov- 

debts,  and   shall    continue   her   sole   and  erture,  unless  he  shall  be  guilty  of  wasting 

separate  property,  as  if  she  were  a  single  or  squandering  it:  Act  of  17  April,  1850, 

female."  Wood's  Cal.  Dig.  (1860),  p.  487. 


OF    THE   ALIENATION    OF    CHOSES    IN    POSSESSION.  47 

endured  has  the  effect  of  a  pardon  ;{k)  but  the  restoration  to  civil  ri<^hts 
does  not  take  effect  till  the  determination  of  the  period  of  punishment. 
All  personal  property,  therefore,  which  accrues  to  a  felon  during  his 
transportation  is  forfeited  to  the  crown  ;(Z)  but  a  mere  contingent  interest 
will  not  be  forfeited,  if  it  do  not  vest  until  the  expiration  of  the  period 
of  banishment. (m) 

*With  regard  to  the  objects  for  which  the  alienation  of  chat-  r^^o-i 
tels  personal  is  prohibited,  gifts  to  charitable  purposes  are  not 
restricted,  neither  are  corporations  excepted  objects,  as  in  the  case  of 
landed  property. (?iy  But  by  a  statute  of  the  reign  of  Elizabeth, (o)  the 
gift  or  alienation  of  any  lands,  tenements,  hereditaments,  goods  and  chat- 
tels, made  for  the  purpose  of  delaying,  hindering  or  defrauding  creditors, 
is  rendered  void  as  against  them,  unless  made  upon  good,  which  here 
means  valuable,  con.sideration,  and  bond  fide  to  any  person  not  having  at 
the  time  of  such  gift  any  notice  of  such  fraud.  There  are  also  more 
stringent  provisions  to  the  same  effect  contained  in  the  bankrupt  laws,  to 
which  reference  will  be  hereafter  made  in  the  chapter  on  bankruptcy. 
The  fraudulent  purpose  intended  by  the  statute  of  Elizabeth  can  of 
course  only  be  judged  of  by  circumstances.  Thus  it  has  been  held  that 
if  the  owner  of  goods  make  an  absolute  assignment  of  them  by  deed  to 
one  of  his  creditors,  and  yet  remain  in  the  possession  of  the  goods,  such 
remaining  in  possession  is  a  badge  of  fraud,  which  renders  the  assignment 
void,  by  virtue  of  the  statute,  as  against  the  other  creditors.(/>)  But  if 
the  assignment  be  made  to  secure  the  payment  of  money  at  a  future  day, 
with  a  proviso  that  the  debtor  shall  remain  in  possession  of  the  goods 
until  he  shall  make  default  in  payment,  the  possession  of  the  debtor, 
being  then  consistent  with  the  terms  of  the  deed,  is  not  regarded  in 
modern  times  as  rendering  the  transaction  fraudulent  within  the  meaning 

(k)  Stat.  9  Geo.  IV.  c.  32,  s.  3.  (l)  Roberts  v.  Walker,  1  Russ.  &  M.  752. 

(m)  Stokes  v.  Holdea,  1  Keen  145;  Thompson's  Trusts,  22  Beav.  506. 

(n)  See  Principles  of  the  Law  of  Real  Property  58,  2d  ed.  ;  60,  61,  3d  &  4th  eds. ; 
64,  65,  5th  ed. ;  69,  6th  ed. ;  72,  7th  &  8th  eds. 

(o)  Stat.  13  Eliz.  c.  5. 

(p)  Twyne's  Case,  3  Rep.  80  b  ;  1  Smith's  Leading  Cases  1 ;  Edwards  v.  Harben,  2 
T.  Rep.  587. 

1  By  an   act    of   the  legislature   of  the  the  testator  or  alienor.    And  such  disposi- 

State  of  Pennsylvania,  passed  April    26,  tions  of  property,  must   conform   in  other 

1855,  no   bequest,   devise,  or  conveyance  respects  with  the  provisions  and  restric- 

for  religious  or  charitable  uses,  shall  be  tions  of  the   said  act :  Purd.  Dig.  (1861), 

valid  unless  made  by  will  or  deed  at  least  p.  146,  sec.  6. 
one  calendar  month  before  the  decease  of 


48 


OF   CHOSES    IN    POSSESSION. 


of  the  statute.((/)     Such  a  transaction  is  in  fact  a  mortgage  of  the  goods, 
analogous  to  a  mortgage  of  lands.(r)^    The  property  in  the  *goods 


[*40] 


passes  at  law  b}^  the  deed  to  the  mortgagee,(s)  whilst  the  posses- 


[q)  Edwards  v.  Harben,  2  T.  Rep.  537  ;  Martindale  v.  Booth,  3  B.  &  Ad.  498  (E. 
C.  L.  R.  vol.  2.3) ;  Reed  v.  Wilmot,  7  Bing.  577  (E.  C.  L.  R.  vol.  20). 

(r)  See  Principles  of  the  Law  of  Real  Property  332,  2d  ed. ;  349,  4th  ed.  ;  3G0,  5th 
ed. ;  382,  6th  ed. ;  389,  7th  ed. ;  407,  8th  ed. 

(a)  Gale  v.  Burnell,  7  Q.  B.  850  (E.  C.  L.  R.  vol.  53). 


1  It  is  a  prenerally  established  rule,  that, 
as  regards  third  persons,  there  cannot  be  a 
sale  ormortp:age  of  personal  property,  with- 
out a  transfer  of  the  possession  :  Waters' 
Exrs.  V.  McClellan  et  al.,  4  Dall.  208 
note  (a) ;  Noyes  v.  Brent,  5  Cr.  C.  C. 
656 ;  Kater  v.  Steinrack,  40  Penn  St. 
501.  But  this  rule  is  subject  to  many  ex- 
ceptions ;  thus,  in  several  of  the  states 
there  may  be  a  mortgage  of  personalty, 
without  a  notorious  and  visible  change  of 
possession :  Whitney  v.  Lowell,  33  Maine 
318;  Thayer  v.  Stark,  6  Cush.  11; 
Whitney  v.  Hepwood,  Id.  82 ;  Prior  v. 
White,  12  111.  261  ;  Rugg  v.  Barnes,  2 
Cush.  591 ;  Ballurae  v.  Wallace,  2  Rich. 
80;  Smith  v.  Turcher,  9  Ala.  208;  Smith 
V.  Acker,  23  Wend.  653  ;  Cole  v.  White, 
26  Id.  511;  Hall  v.  Carnley,  2  Duer 
99;  Gay  v.  Bidwell,  7  Mich.  519;  Mor- 
row V.  Turney,  35  Ala.  131  ;  Hackett 
V.  Manlove,  14  Cal.  85  ;  Crosswell  v. 
AUis,  25  Conn.  301;  Adler  v.  Claflin,  17 
Iowa  89  ;  the  mortgage  must,  however, 
be  recorded,  in  order  to  render  it  valid  as 
regards  third  parties  :  Witham  v.  Butter- 
field,  6  Cush.  217:  Brighara  v.  Weaver, 
Id.  298  ;  Stowell  v.  Goodale,  Id.  452 ; 
Bishop  V.  Cook,  13  Barb.  S.  C.  326;  Frost 
V.  Wilhird,  9  Id.  440  ;  Wilson  v.  Leslie,  20 
Ohio  161  ;  Brown  v.  Webb,  Id.  389;  Cook 
D.Thayer,  11  111.  617;  Travis  v.  Bishop, 
13  Mete.  304 ;  Shapleigh  v.  Wentworth, 
Id.  358;  Vaughn  v.  Bell,  9  B.  Mon.  447; 
Burditt  V.  Hunt,  25  Maine  419;  Appleton 
V.  Bancroft,  10  Mete.  231;  Camp  v.  Camp, 
2  Hill  628;  Faddea  v.  Turner,  3  Jones 
481;  Barfield  v.  Cole,  4  Sneed  465; 
465;  Call  v.  Gray,  37  N.  H.  428;  but, 
as  between  the  parties  themselves,  it  has 


been  held,  that  the  mortgage  would  be 
good  without  being  recorded,  or  without  a 
transfer  of  the  possession  :  Smith  v.  Moore, 
11  N.  H.  55;  Winsor  v.  McLellan,  2 
Story  492  ;  Hall  v.  Snowhill,  2  Green 
8 ;  Merrick  v.  Avery,  14  Ark.  370 ; 
Wescott  V.  Gunn,  4  Duer  107  ;  Johnson 
V.  Jeffries,  30  Miss.  423 ;  Fuller  v.  Paige, 
26  111.  358;  Brooks  v.  Ruff,  37  Ala.  371; 
Lockwood  V.  Slevin,  26  Ind.  124. 

But  a  mortgage  of  chattels  executed  in 
the  state  of  New  York,  and  valid  by  the 
laws  of  that  state  without  a  change  of 
possession,  will  not  protect  the  property 
from  attachment  in  the  state  of  Massachu- 
setts, by  creditors  of  the  mortgagor,  if 
found  there  in  the  possession  of  the  mort- 
gagor, though  brought  there  by  him  for  a 
temporary  purpose  :  Wentworth  v.  Leon- 
ard, 4  Cush.  414.  And  see  to  the  same 
principle  :  Blystone  v.  Burgett,  10  Ind.  28  ; 
Bowman  v.  McKleroy,  14  La.  An.  587. 

To  some  extent  the  mortgage  of  per- 
sonal property  seems  subject  to  the  rules 
governing  the  mortgage  of  real  estate  ; 
thus,  it  may  be  sold  on  execution  against 
the  mortgagor,  and  the  purchaser  will 
take  it  subject  to  the  mortgage  :  Bank  of 
Lansingburgh  v.  Crary,  1  Barb.  S.  C.  542  ; 
or  the  mortgagee  will  have  the  right  to  re- 
cover possession  of  the  mortgaged  pro- 
perty from  any  person  holding  under 
him  through  such  sale  :  Mercer  v.  Tinsley, 
14  B.  Mon.  273.  Again,  a  mortgage  of  per- 
sonalty is  good,  and  will  have  effect  against 
any  other  title  inferior  to  it,  except  a  sale  or 
mortgage  of  the  same  goods  from  the  same 
person,  previously  recorded  :  Youngblood 
V.  Keadle,  1  Strob.  121  ;  White's  Bank  v. 
Smith,  7  Wall.  U.  S.  646. 


OF   THE   ALIENATION   OF   CHOSES   IN   POSSESSION. 


49 


sion  of  them  rightly  remains  with  the  mortgagor.  The  mortgagee  there- 
fore cannot  maintain  an  action  of  trover  for  the  goods  against  a  stranger^  . 
until  default  has  been  made  by  the  mortgagor  in  payment  of  the  money 
secured.(^)  In  this  respect  a  mortgage  of  goods  differs  from  a  mere 
pledge,  in  which  the  property  in  the  goods  remains  with  the  pledgor,  and 
the  pledgee,  although  he  may  have  power  to  sell  them,  obtains  possession 
only,(M)  the  right  to  retain  which  enables  him  to  maintain  an  action  of 
trover.(v)  The  chief  disadvantage  in  a  mortgage  of  goods  is,  that,  as  the 
goods  continue  in  the  possession  of  the  mortgagor  as  reputed  owner,  they 
will,  by  virtue  of  provisions  in  one  of  the  bankrupt  acts,  become  liable, 
in  the  event  of  his  bankruptcy,  to  be  sold  for  the  benefit  of  his  creditors 


(t)  Bradley  v.  Copley,  1  C.  B.  685  (E.  C.  L.  R.  vol.  50)  ;  Brierley  v.  Kendall,  17  Q.  B. 
937  (E.  C.  L.  R.  vol.  79).  If  the  mortgagor  should  retain  possession  after  default  in 
payment  at  the  time  specified,  it  may  possibly  be  doubted  whether  the  security  would 
not  then  be  void  as  against  creditors  under  the  statute  of  Elizabeth,  for,  by  the  terms 
of  the  deed,  the  mortgagor  is  only  to  enjoy  possession  until  default.  But  the  better 
opinion  is  that  the  deed  will  still  be  good.  See  2  Davidson's  Precedents  609,  2d  ed.; 
Ex  parte  Sparrow,  2  De  G.,  M.  &  G.  907. 

(m)  Ante,  p.  27. 

(v)  Legg  V.  Evans,  6  M.  &  W.  36. 


A  mortgage  of  personal  property  to 
secure  future  advances,  as  well  as  an  ex- 
isting debt,  has  been  held  valid  for  the 
sum  due  at  the  time  the  mortgagees  assert 
their  title :  Fairbanks  v.  Bloomfield,  5 
Duer  434.  And  see  also  23  How.  U.  S. 
14  ;  Googins  v.  Gilmore,  47  Maine  9  ; 
McClelland  v.  Remsen,  36  Barb.  622  ; 
Speer  v.  Skinner,  35  HI.  282. 

In  Florida,  there  must  be  a  delivery 
within  twenty  days,  in  order  to  render  the 
mortgage  valid  :  Sanders  v.  Pepoon,  4  Fla. 
465. 

In  Pennsylvania,  the  old  rule  seems  gen- 
erally to  prevail,  that  in  order  to  render  a 
mortgage  or  sale  of  personal  property 
valid,  as  against  the  creditors  of  the  mort- 
gagor or  vendor,  in  general,  a  correspond- 
ing change  of  possession  thereof  must 
accompany  the  same.  But  if  such  change 
of  possession  be  impracticable,  it  must  be 
dispensed  with,  for  the  law  never  requires 
that  which  is  impossible  ;  for  that  posses- 
sion of  the  thing  pledged,  which  its  nature 
and  the  circumstances  will  admit  of,  is  the 


kind  of  possession  only  which  the  law 
demands  :  Fry  v.  Miller,  Penn.  St.  441  ; 
Roberts'  Ap.,  60  Id.  400  ;  McKibbiu  v. 
Martin,  64  Id.  352.  By  an  act  of  the  leg- 
islature of  tliat  state,  passed  April  5,  1853, 
Pamp.  L.  295,  it  is  provided,  that  the 
lessees  of  coal  mines  in  Schuylkill  county, 
"  may  mortgage  their  interests  in  such 
rights,  or  property  demised,  together  with 
all  machinery  and  fixtures  appurtenant  or 
belonging  thereto."  And  see  Pamph.  L. 
1855,  p.  362,  sec.  8. 

See  also  on  the  subject  of  mortgage  of 
chattels  :  Beaumont  v.  Yeatman,  8  Humph. 
542  ;  Provost  v.  Wilcox,  17  Ohio  359 ; 
Jewett  V.  Preston,  27  Maine  400;  Fer- 
guson V.  Thomas,  26  Id.  499  ;  Hubby  v. 
Hubby,  5  Gush.  515  ;  Weld  v.  Cutler,  2 
Gray  195  ;  McTaggart  v.  Rose,  14  Ind. 
230;  Gregg  v.  Sanford,  24  111.  17;  State 
!;.  D'Oench,  31  Misso.  433. 

As  to  the  necessity  of  a  transfer  of  pos- 
session in  the  case  of  a  levy  and  execution 
upon  personal  property :  see  Levy  v 
Wallis,  4  Dall.  167,  note. (a) 


49  OF   CIIOSES    IN    POSSESSION. 

generally. (.r)*  By  recent  acts  of  parliament(?/)  every  bill  of  sale  of  per- 
sonal chattels,  whereby  the  grantee  shall  have  power  to  take  possession 
of  any  effects  therein  comprised,  or  a  true  copy  thereof,  must  be  regis- 
tered in  the  office  of  the  Court  of  Queen's  Bench  within  twenty-one 
days ;  otherwise  such  bill  of  sale  is  rendered  void,  so  far  as  regards  any 
ricoi  ^^  ^^^"^  goods  in  the  apparent  possession  *of  the  grantor,  as  against 
the  assignees  of  the  grantor,  in  case  of  his  bankruptcy,  or  under 
any  assignment  for  the  benefit  of  his  creditors,  and  as  against  all  sheriff's 
officers  and  other  persons  seizing  the  effects  in  execution  of  any  process 
of  any  court  of  law  or  equity  issued  against  the  goods  of  the  grantor,  and 
also  as  against  any  subsequent  duly  registered  bill  of  sa\e.{z)  Such  bills 
of  sale  before  the  act  w-ere  valid  as  against  an"  execution  creditor,  though 
void  as  against  assignees  under  the  bankruptcy  of  the  grantor,  and  the 
act  does  not  appear  to  give  to  such  bills  of  sale  as  are  filed  under  it  any 
greater  validity  than  they  had  before.(a)  But  if  the  bill  of  sale  be  not 
filed,  the  goods  may  now  be  taken  in  execution,  which  they  could  not 
have  been  before  the  act.  The  act  does  not  apply  to  fixtures,  w^hen 
they  pass  by  a  conveyance  of  the  premises  to  which  they  are  affixed. (i) 
And  as  seizure  of  the  goods  of  a  trader  under  an  execution  for  an  amount 
not  less  than  fifty  pounds  has  now  been  made  an  act  of  bankruptcy, (c)  a 
bill  of  sale  of  the  goods  of  a  trader,  whether  filed  or  not,  now  affords  a 
very  unsatisfactory  security.     The  Bills  of  Sale  Act,  1866, (c?)  now  pro- 

(z)  Ryall  V.  Rollo,  1  Atk.  165,  170;  s.  c.  nom.  UyaW  v.  Rowles,  1  Ves.  sen.  343; 
Stat.  6  Geo.  IV.  c.  16,  s  72,  repealed  aad  re-enacted  by  stat.  12  &  13  Vict.  c.  106,  s. 
125,  repealed  by  stat.  32  &  33  Vict.  c.  83,  but  the  provision  in  question  in  substance 
re-enacted  by  the  Bankruptcy  Act,  1869,  stat.  32  &  33  Vict.  c.  71,  s.  15,  par.  5  (see 
post,  p.  54)  ;  Freshney  v.  Carrick,  1  H.  &  N.  653  ;  Spackman  v.  Miller,  12  C.  B.  N.  S. 
659  (E.  C.  L.  R.  vol.  104) ;   Hornsby  v.  Miller,  1  E.  &  E.  192  (E.  C.  L.  R.  vol.  102). 

(y)  Stats.  17  &  18  Vict.  c.  36  ;  25  &  30  Vict.  c.  96. 

(z)  Richards  v.  James,  Law  Rep.  2  Q.  B.  285.     By  the  Bankruptcy  Act,  1869,  stat.  32 
&  33  Vict.  c.  71,  a  trustee  is  substituted  for  the  assignees  in  case  of  bankruptcy. 
Jur.  N.  S.  377  ;  2  E.  &  E.  472  (E.  0.  L.  R.  vol.  105.) 

(a)  Stansfeld  v.  Cubitt,  2  De  G.  &  Jones  222  ;  Badger  v.  Shaw,  Q.  B.,  8  W.  R.  210  ;   6 

(b)  Mather  w.  Fraser,  2  Kay  &  J.  536;  Waterfall  v.  Pennistone,  6  E.  &  B.  876  (E.  C. 
L.  R.  vol.  88) ;  Boyd  v.  Shorrock,  V.  C.  W.,  Law  Rep.  5  Eq.  72.  The  bill  of  sale  must 
be  duly  stamped  before  it  can  be  registered.     Stat.  24  &  25  Vict.  c.  91,  s.  34. 

(c)  Stat.  32  &  33  Vict.  c.  71,  s.  6.  (d)  Stat.  29  &  30  Vict.  c.  96. 

*  By  the  fourteenth  section  of  the  Bank-  of    the    United   States,   or  of    any   state^ 

rupt  Act  of  the  United  States,  it  is  provided  shall  be  invalidated   or  affected"   by  the 

that  "  no  mortgage  of  any  vessel,  or  of  any  assignment  of  all  the  bankrupts  property 

other  goods  or  chattels  made  as  security  to  the  assignee  in   bankruptcy,  under  the 

for  any  debt  or  debts,  in  good  faith  and  for  provisions  of  that  section  :  Brightly's  Dig. 

present  consideration,  and  otherwise  valid  L.  U.  S.  p.  77. 
and  duly  recorded,  pursuant  to  any  statute 


OF   THE    ALIENATION    OF   CHOSES    IN    POSSESSION.  50 

vides  for  the  renewal  every  five  years  of  the  registration  of  bills  of  sale, 
by  an  affidavit  to  be  filed  in  a  given  form  that  the  security  is  still  sub- 
sisting, without  which  the  prior  registration  will  cease  to  be  of  any 
effect. 

Choses  in  possession  have  long  been  liable  to  involuntary  aliena-  [-:,<;--, -i 
tion  for  the  payment  of  the  debts  of  their  *owner.  On  the  decease 
of  any  person,  his  personal  property  generally  has  always  been  liable,  in 
the  first  place,  to  the  payment  of  his  debts  of  every  kind.  And  if  a 
creditor  take  proceedings  against  his  debtor  in  the  debtor's  lifetime,  a 
sale  of  his  goods  and  chattels  may  be  procured  by  means  of  a  writ  of 
fieri  facias  {fi.  fa.)  issued,  in  execution  of  the  judgment  of  the  court. 
This  writ  is  of  very  ancient  date,  and  is  usually  said  to  be  given  by  the 
common  law  ;  though  some  suppose  that  its  name  arose  from  the  wording 
of  the  statute  of  Edward  I.,(e)  by  which  the  writ  of  elegit  was  pro- 
vided.(/)  The  writ  directs  the  sheriff  to  cause  the  debt  to  be  realized  out 
of  the  goods  and  chattels  of  the  debtor,  quod  fieri  facias  de  bonis  et 
cataUis,  &c. :  and  a  sale  of  the  goods  is  made  by  the  sheriff  accordingly. 
And  the  seizure  of  the  goods  of  a  trader  is  now  an  act  of  bankruptcy 
whenever  the  debt  or  damages  recovered  are  not  less  than  fifty  pounds. (7i)' 
Goods  however  are  not,  as  lands  formerly  were,  affected  by  the  mere 
entry  of  a  judgment  of  a  court  of  law  against  the  owner.  The  debtor 
was  always  allowed  to  alienate  his  goods  until  the  writ  of  execution  was 
issued;  although,  by  a  fiction  of  law,  all  judicial  proceedings,  writs  of 
execution  included,  formerly  related  back  to  the  first  day  of  the  term  to 
which  they  belonged. («')  Goods,  therefore,  which  had  been  sold  [-^^9-, 
after  the  first  day  of  a  terra,  *might  yet  practically  have  been  ^ 

seized  under  a  writ  of  fi.  fa.  relating  back  to  that  day,  but  subsequently 
issued.  To  remedy  this  evil,  it  was  enacted  by  one  of  the  sections  of  the 
Statute  of  Frauds, (y)  that  no  writ  of  fieri  facias  or  other  writ  of  execu- 
tion shall  bind  the  property  of  the  goods  against  which  it  is  sued,  but 
from  the  time  that  such  writ  shall  be  delivered  to  the  sheriff,  under- 
sheriff,  or  coroner,  to  be  executed ;  and  the  officer  is  required,  upon  re- 

(e)  Stat.  13  Ewd.  I.  c.  18,  called  the  Statutes  of  Westminster  the  Second.  See 
Principles  of  the  Law  of  Real  Property  63,  2d  ed. ;  66,  3d  and  4th  eds.  ;  71,  5th  ed.  ; 
75,  6th  ed. ;  78,  7th  and  8th  eds. 

(/)  Bac.  Abr.  tit.  Execution  (C). 

(h)  Stat.  32  &  33  Vict.  c.  71,  s.  6  ;  Woodhouse  v.  Murray,  Law  Rep.  2  Q.  B.  634. 

(i)  Com.  Dig.  tit.  Execution  (D.  2) ;  Anon.,  2  Vent.  218.  See  2  Sugd.  Vend.  &  Pur 
9th  ed.  198. 

(J)  Stat.  29  Car.  II.  c.  3,  s.  16. 

1  See  post  p.  132,  note  2k.  and  p.  134,  note  1. 


52  OF    CIIOSES    IN    POSSESSION. 

ceipt  of  the  writ,  to  endorse  on  it  (without  fee)  the  day  of  the  month  and 
year  on  which  he  received  it.  Goods  and  chattels  might  therefore  be 
safely  alienated,  although  judgment  might  exist  against  the  owner,  pro- 
vided a  writ  of  execution  were  not  actually  in  the  hands  of  the  sheriff. 
And  a  recent  statute  now  provides  that  no  writ  of  execution  shall  preju- 
dice the  title  to  goods  acquired  by  any  person  bond  fide,  and  for  a 
valuably  consideration,  before  the  actual  seizure  thereof  by  virtue  of  such 
writ ;  provided  such  person  had  not,  at  the  time  when  he  acquired  such 
title,  notice  that  such  writ,  or  any  other  writ  under  which  the  goods 
mio-ht  be  seized,  had  been  delivered  to  the  officer  and  remained  unexe- 
cuted  in  his  hands.(A;)  It  has  been  decided  that  an  alienation  to  secure 
or  satisfy  another  creditor  is  not  void  within  the  above-mentioned  statute 
of  the  13  Ehzabeth,(Z)  although  made  with  the  intention  of  defeating  an 
expected  execution  of  the  judgment  creditor. (m)^  Besides  the  sale  of 
goods  under  the  writ  of  fieri  facias,  there  might  also  be  a  writ  of  levari 
facias,  now  disused,  by  which  the  sheriff  levied  the  corn  and  other  pres- 
ent profit  which  grew  on  the  lands,  together  with  the  rents  then  due,  and 
the  cattle  thereon. (r?)  And  by  the  writ  of  elegit,  the  goods  of  the  debtor 
are  delivered  to  his  ^creditor  at  an  appraised  value,  together 
L  -I  with  possession  of  his  lands. (o)  It  has  however  been  enacted  that 
the  wearing  apparel  and  bedding  of  any  judgment  debtor  or  his  family, 
and  the  tools  and  implements  of  his  trade  (not  exceeding  in  the  whole 
the  value  of  five  pounds),  shall  not  be  liable  to  seizure  under  any  execu- 
tion or  order  of  any  court  against  his  goods  and  chattels.(p)^     And  the 

[k)  Stat.  19  &  20  Vict.  c.  97,  s.  1.  See  Hobson  v.  Thelluson,  Law  Rep.  2  Q.  B. 
642,  qu.? 

[1)  Stat.  13  Eliz.  c.  5. 

(wi)  Wood  V.  Di.\ie,  7  Q.  B.  892  (E.  C.  L.  R.  vol.  53) ;  Hale  v.  Saloon  Omnibus  Com- 
pany, 4  Drew.  492. 

(m)  2  Wms.  Saunders,  68  a,  n.  (1). 

(o)  Pullen  V.  Purbecke,  1  Ld.  Raym.  346.  See  the  present  forms  of  this  writ  and  of 
the  writ  of  fi.  fa.,  9  A.  &  E.  986  (E.  C.  L.  R.  vol.  36)  et  seq.,  5  New  Cas.,  366  et  seq. 

{p)  Stat    8  &  9  Vict.  c.  127,  s.  8. 

1  See  post  p.  132,  note  2h.  p.  1211 ;   Code  of  Ala.  (1852).  p.  453,  sec. 

*  Provisions  analogous  to  that  stated  in  2462;  Gen.  Stats.  Mass.  (Ibouj,-  p.  68,  sec. 

the  text,  and  more  or  less  liberal  to  the  32  ;  Nix.  Dig.  Laws  of  N.  J.  (1868),  p.  295, 

debtor,  are  in  force  in  almost  all  the  states  sees.  9,  13  ;  Revis.  Code  of  N.  C.  (1855),  p. 

of  the   Union:   Gen.  Stats.  N.  H.    (1867),  276,  sec.  8  ;   1   Revis.   Stats.  Ky.  (I860),  p. 

pp.  415,   416  ;  Thompson's  Dig.  Laws  of  495,  Sup.  to  Revis.  Stats.  Ky.  p.  714.     See 

Fla.,  p.  356,  sec.  3;  3  Revis.  Stats,  of  N.  sec.    1,    6    Stats,   of  S.  C,  pp.    213,    214; 

Y.  645,  and  6  N.  Y.  Stats,  at  Large,  pp.  367,  Caruth.  and  Nichol.  Stat.  Laws  of  Tenn., 

830;  Revis   Stats,   of  Vt.    (1839),   p.   240,  p.  533,  and  Laws  of  Tenn.  Sup.  (1846),  pp. 

sec.  13 ;  2  Compiled  Laws  of  Mich.  (1857),  230,  231  ;  Laws  of  Del.,  Revis.  Code,  1852, 


OF   THE   ALIENATION    OF    CHOSES    IN    POSSESSION.  53 

Common  Law  Procedure  Act,  1860,  now  provides,  that  where  goods  or 
chattels  have  been  seized  in  execution  by  a  sheriff  or  other  officer  under 
process  of  the  superior  courts  of  common  law,  and  some  third  person 
claims  to  be  entitled  under  a  bill  of  sale  or  otherwise  to  such  goods  or 
chattels  by  way  of  security  for  a  debt,  the  court  or  a  judge  may  order  a 
sale  of  the  whole  or  part  thereof,  upon  such  terms  as  to  payment  of  the 
whole  or  part  of  the  secured  debt  or  otherwise  as  they  or  he  shall  think 
j5t,  and  may  direct  the  application  of  the  proceeds  of  such  sale  in  such 
manner  and  upon  such  terms  as  to  such  court  or  judge  may  seem  just.(^) 

Choses  in  possession  are  also  liable  to  involuntary  alienation  on  the 
bankruptcy  of  their  owner.  In  this  event,  all  such  property  as  may  be- 
long to  or  to  be  vested  in  the  bankrupt  at  the  commencement  of  the 
bankruptcy,  or  may  be  acquired  by  or  devolve  on  him  during  its  con- 
tinuance, except  property  held  by  him  on  trust  for  any  other  person,  and 
except  the  tools  (if  any)  of  his  trade  and  the  necessary  wearing  apparel 
and  bedding  of  himself,  his  wife  and  children,  to  a  value  inclusive  of  tools 
and  apparel  and  bedding,  of  twenty  pounds  in  the  whole,  vest  first  in  the 
registrar  of  the  Court  of  Bankruptcy,  and  then  in  the  trustee  appointed 
by  the  creditors  under  the  Bankruptcy  Act,  1869.(7-)  Under  the  pre- 
vious bankruptcy  act  the  property  of  the  bankrupt  *vested  first  in  r^^^-i 
the  official  assignee,  and  then  in  the  creditors'  assignees. (s)  And 
in  order  to  prevent  traders  from  obtaining  false  credit  from  the  posses- 

(q)  Stat.  23  &  24  Vict.  c.  126,  s.  13, 

(r)  Stat.  32  &  33  Vict.  c.  71,  ss.   17,  83,  paragraph  (6).     See  post,  the  chapter  oa 
Bankruptcy. 

(s)  Stat.  24  &  25  Vict.  c.  134,  ss.  108,  117. 

pp.  393,  394;   Dig.  of  the  Stats,   of  Ark.,  cntion  or  by  distress  for  rent."     Pur.  Dig. 

pp.  496,  497  ;  Revis.  Stats.  Ohio  (1860),  p.  (1861),  p.  432,  sec.  20.     And  by  the  act  of 

1143   sec.  1.  the  4th  of  March  1870,   sewing  machines 

In   Pennsylvania,  the   exemption  law  is  used  and  owned  by  private  families  are 

somewhat  peculiar,  it  being  enacted  by  the  also   exempted.     Purd.  Dig.  Sup.  p.  1606, 

act  of  the  9th  of  April,  1849,  sec.  1,  that,  sec.  1. 

"In  lieu  of  the  property  now  exempt  by         By  the  constitution  of  the  state  of  Michi- 

lawfromlevy  and  sale  on  execution,  issued  gan,  it  is  provided.  Art.   xvi.  sec.  1,  that 

upon  any  judgment  obtained  upon  contract  "the   personal  property  of  every  resident 

and  distress  for  rent,  property  to  the  value  of  this  state,  to   consist  of  such  property 

of  three  hundred  dollars,  exclusive  of  all  only  as  shall  be  designated  by  law,  shall 

wearing  apparel  of  the  defendant  and  his  be   exempted   to   the    amount  of  not  less 

family,  and  all  Bibles  and    school-books  than   five  hundred   dollars,   from   sale  on 

in  use  in  the  family  (which  shall  remain  execution,   or  other   final  process  of  any 

exempted    as    heretofore),    and   no   more,  court  ;"&c.  1  Comp.  Laws.  Mich.  (18.")7),  72. 
owned  by  or  in  possession  of  any  debtor,         See  post  page   132,  note   2  b.  and   149 

shall  be  exempt  from  levy  and  sale  on  exe-  note  2. 


54  OF   CIIOSES   IN   POSSESSION. 

sion  of  property  wliich  was  not  their  OAvn,  it  was  provided  by  the  former 
bankruptcy  acts,(f)  that  if  any  bankrupt  at  the  time  he  became  bankrupt 
should  by  the  consent  and  permission  of  the  true  owner  thereof  have  in 
his  possession,  order,  or  disposition,  any  goods  or  chattels,  whereof  he 
was  reputed  owner,  or  whereof  he  had  taken  upon  him  the  sale,  altera- 
tion or  disposition  as  owner,  the  Court  of  Bankruptcy  should  have  power 
to  order  the  same  to  be  sold  and  disposed  of  for  the  benefit  of  the  cred- 
itors under  the  bankruptcy.  But  it  was  held  that,  until  an  order  for  the 
sale  of  such  goods  had  been  made  by  the  court,  no  property  in  them 
vested  in  the  assignees  ;(m)  and  the  order  was  required  to"  specify  the 
particular  goods  which  were  to  be  sold. (a:)  The  above  provision  was  ap- 
parently extended  by  the  Bankruptcy  Act,  1851, (?/)  to  all  persons 
whether  traders  or  not.  And  now  by  the  Bankrui)tcy  Act,  1869,(2)  the 
property  of  the  bankrupt  divisible  amongst  his  creditors  comprises  all 
goods  and  chattels  being  at  the  commencement  of  the  bankruptcy  in  the 
possession,  order  or  disposition  of  the  bankrupt,  being  a  trader,  by  the 
consent  and  permission  of  the  true  owner,  of  which  goods  and  chattels 
the  bankrupt  is  reputed  owner,  or  of  which  he  has  taken  upon  himself 
the  sale  or  disposition  as  owner ;  provided  that  things  in  action,  other 
than  debts  due  to  him  in  the  course  of  his  trade  or  business,  shall  not  be 
deemed  goods  and  chattels  within  the  meaning  of  tliis  clause. 

(0  Stats.  6  Geo.  IV.  c.  16,  s.l2;  1  &  2  Will.  IV.  c.  56,  s.  7  ;  5  &  6  Vict.  c.  122,  s. 
59  et  seg.,  repealed  and  consolidated  by  stat.  12  &  13  Vict.  c.  106,  s.  125;  Hamilton  v. 
Bell,  10  Ex.  Rep.  545;  18  Jur.  1109;  Reynolds  v.  Hall,  4  H.  &  N.  519  ;  Holderness  v. 
Rankin,  2  De  G.,  F.  &  J.  258. 

(m)  Heslop  I'.  Baker,  6  Ex.  Rep.  740  ;  15  Jur.  684.  See  Ex  parte  Heslop,  1  De  G.,  M. 
&G.  477  ;  Ex  parte  Wood,  4  De  G.,  M.  &  G.  861;  Ex  parte  Young,  4  De  G.,  M.  &  G.  864. 

(z)  Quartermaine  v.  Bittleston,  13  C.  B.  133  (E.  C.  L.  R.  vol.  76) ;  Fielding  v.  Lee, 
18  C.  B.,  N.  S.  499  (E.  C.  L.  R.  vol.  114). 

(^)  Stat.  24  &  25  Vict.  c.  134,  s.  232.  (x)  Stat.  32  &  33  Vict.  c.  71,  s.  15,  par.  (5). 


•     *CHAPTERIV.  [*55] 

OF    SHIPS. 

There  is  one  important  class  of  choses  in  possession  which  the  policy 
of  the  law  has  rendered  subject  to  peculiar  rules,  namely,  ships  and  ves- 
sels. The  whole  of  the  acts  relating  to  Merchant  Shipping  were  repealed 
by  the  Merchant  Shipping  Repeal  Act,  1854,(a)  and  the  law  on  this  sub- 
ject is  now  contained  in  the  Merchant  Shipping  Act,  1854,(6)  as  amended 
by  the  Merchant  Shipping  Act  Amendment  Acts,  1855(c)  and  1862. (c?) 
Every  British  ship,  with  a  few  unimportant  exceptions,  is  required  to  be 
registered, (g)  and  no  ship  is  to  be  deemed  a  British  ship  unless  she  be- 
longs wholly  to  natural  born  British  subjects,  or  to  persons  made  denizens 
or  duly  naturalized.  But  no  natural  born  subject  who  has  taken  the  oath 
of  allegiance  to  any  foreign  state  can  be  owner,  unless  he  has  subse- 
quently taken  the  oath  of  allegiance  to  her  Majesty,  and  continues  during 
his  ownership  resident  within  her  Majesty's  dominions,  or,  if  not  so  resi- 
dent, member  of  a  British  factory,  or  partner  in  a  house  actually  carrying 
on  business  within  her  Majesty's  dominions.  And  every  denizen  and 
naturalized  person  must  continue  during  his  ownership  resident  within 
her  Majesty's  dominions,  or,  if  not  so  resident,  must  be  a  member  of  a 
British  factory,  or  partner  in  such  a  house  of  business  as  above  mentioned. 
But  bodies  corporate  established  under  *and  subject  to  the  laws  r*cp-| 
of  the  United  Kingdom  or  any  British  possession,  and  having  their 
principal  place  of  business  therein,  may  be  owners.(/)  The  registration 
is  made  by  the  collector,  comptroller  or  other  principal  officer  of  customs 
for  the  time  being  at  any  port  or  other  place  in  the  United  Kingdom  ap- 
proved by  the  commissioners  of  customs  for  the  registry  of  ships,  and  by 
other  officers  in  the  colonies  and  possessions  abroad.(^) 

The  property  in  every  ship  is  divided  into  sixty-four  shares ;  and,  sub- 
ject to  the  provisions  of  the  act  with  respect  to  joint  owners  or  owners  by 

(a)  Stat.  lY  &  18  Vict.  c.  120.  (b)  Stat.  17  &  18  Vict.  c.  104. 

(c)  Stat.  18  &  19  Vict.  c.  91.  {d)  Stat.  25  &  26  Vict.  c.  63. 

(e)  Stat.  17  &  18  Vict.  c.  104,  s.  19.     As  to  colonial  shipping,  see  stat.  31  &  32  Vict, 
c.  129. 

(/)  Stat.  17  and  18  Vict.  c.  104,  s.  18.     {g)  Sect.  30. 
5 


56  OF   CHOSES   IN   POSSESSION. 

transmission,  not  more  than  tliirty-two  individuals  shall  be  entitled  to  be 
registered  at  the  same  time  as  owners  of  any  one  ship  ;  but  this  rule  is 
not  to  affect  the  beneficial  title  of  any  number  of  persons,  or  of  any  com- 
pany, represented  by  or  claiming  under  any  registered  owner  or  joint 
owner.'  And  no  person  is  entitled  to  be  registered  as  owner  of  any 
fractional  part  of  a  share  in  a  ship  ;  but  any  number  of  persons  not  ex- 
ceeding five  may  be  registered  as  joint  owners  of  a  ship,  or  of  a  share  or 
shares  therein.  And  joint  owners  are  to  be  considered  as  constituting 
one  person  only,  as  regards  the  foregoing  rule  relating  to  the  number  of 
persons  entitled  to  be  registered  as  owners,  and  shall  not  be  entitled  to 
dispose  in  severalty  of  any  interest  in  any  ship,  or  in  any  share  or  shares 
therein,  in  respect  of  Avhich  they  are  registered.  A  body  corporate  may 
be  registered  as  owner  by  its  corporate  name.(A)  No  notice  of  any  trust, 
express,  implied,  or  constructive,  shall  be  entered  in  the  register  book  or 
receivable  by  the  registrar  ;  and,  subject  to  any  rights  and  powers  ap- 
pearing by  the  register  book  to  be  vested  in  any  other  party,  the  registered 
owner  of  any  ship,  or  share  *therein,  shall  have  power  absolutely 
L  J  to  dispose  of  such  ship  or  share  in  the  manner  prescribed  by  the 
act,  and  to  give  eifectual  receipts  for  any  money  paid  or  advanced  by  way 
of  consideration. (z)  But  the  intention  of  the  act  is,  that,  without  preju- 
dice to  the  provisions  contained  in  the  act  for  preventing  notice  of  trusts 
from  being  entered  on  the  register,  and  without  prejudice  to  the 
powers  of  disposition  and  of  giving  receipts,  conferred  by  the  act  on 
registered  owners  and  mortgagees,  and  without  prejudice  to  the  provisions 
contained  in  the  act  relating  to  the  exclusion  of  unqualified  persons  from 
the  ownership  of  British  ships,  equities  may  be  enforced  against  owners 
and  mortgagees  of  ships  in  respect  of  their  interest  therein,  in  the  same 
manner  as  equities  may  be  enforced  against  them  in  respect  of  any  other 
personal  property. (^)  Upon  the  completion  of  the  registry  of  any  ship, 
the  registrar  gives  a  certificate  of  registry  in  the  form  prescribed  by  the 
act.  And  whenever  any  change  takes  place  in  the  registered  ownership 
of  Any  ship,  then  if  such  change  occurs  when  the  ship  is  at  her  port  of 
registry,  a  memorandum  of  such  change  is  forthwith  endorsed  by  the 
registrar  on  the  certificate  of  registry.  But  if  the  ship  is  absent  from 
her  port  of  registry,  then,  upon  her  first  return  to  such  port,  the  master 
must  deliver  the  certificate  of  registry  to  the  registrar,  and  he  is  to  en- 

(A)  Sect.  37.  (i)  Sect.  43. 

(*)  Stat.  25  &  26  Vict.  c.  63,  s.  3.     See  Ward  v.  Beck,  C.  P.  9  Jur.  N.   S.   912;   13  C. 
B     N.-S..668  (E.  C.  L.  R.  vol.  IdGj ;  Stapleton  v.  Haymen,  2  H.  &  C.  918. 

1  There  are  no  provisions  in  the  registrj'     number  of  owners,  or  regulating  the  frac- 
laws  of  the  Ujiited  States,  restricting  the     tional  parts  of  their  ovcnership. 


OF  SHIPS.  57 

dorse  thereon  a  like  memorandum  of  the  change.  Or  if  she  previously 
arrives  at  any  port  where  there  is  a  British  registrar,  such  registrar  shall, 
upon  being  advised  by  the  registrar  of  her  port  of  registry  of  the  change 
having  taken  place,  endorse  alike  memorandum  thereof  on  the  certificate 
of  registry,  and  may  for  that  purpose  require  the  certificate  to  be  delivered 
to  him,  so  that  the  ship  be  not  thereby  *detained.(Z)  Provision  r:^rQ-i 
is  also  made  for  the  granting  of  a  new  certificate  in  the  place  of 
any  which  may  be  delivered  up,  or  may  be  mislaid,  lost  or  destroyed. (?») 
The  certificate  of  registry  is  to  be  used  only  for  the  navigation  of  the 
ship,  and  is  kept  in  the  custody  of  the  master,  and  is  not  subject  to  de- 
tention by  reason  of  any  title,  lien,  charge,  or  interest  whatsoever  which 
any  owner,  mortgagee  or  other  person  may  have  or  claim  to  have  in  the 
ship  described  in  such  certificate. («)^ 

A  registered  ship  or  any  share  therein,  when  disposed  of  to  persons 
qualified  to  be  owners  of  British  ships,  must  be  transferred  by  bill  of  sale, 
and  such  bill  of  sale  must  contain  such  a  description  of  the  ship  as  is  con- 
tained in  the  surveyor's  certificate,  or  such  other  description  as  may  be 
sufficient  to  identify  the  ship  to  the  satisfaction  of  the  registrar,  and  must 
be  according  to  the  form  set  out  in  the  schedule  to  the  act,  or  as  near 
thereto  as  circumstances  permit,  and  must  be  executed  by  the  transferor 
in  the  presence  of  and  be  attested  by  one  or  more  witnesses. (o)  And  in 
case  any  bill  of  sale,  mortgage  or  other  instrument  for  the  disposal  or 
transfer  of  any  ship  or  any  share  or  interest  therein,  is  made  in  any  form 
or  contains  any  particulars  other  than  the  form  and  particulars  prescribed 
and  approved  for  the  purpose  by  or  in  pursuance  of  the  Merchant  Ship- 
ping Act,  1854,  no  registrar  shall  be  required  to  record  the  same  without 
the  express  direction  of  the  commissioners  of  her  Majesty's  customs. (j^) 
And  no  individual  can  be  registered  as  transferee  of  a  ship,  or  of  any 
share  therein,  until  he  has  made  a  declaration  in  a  prescribed  form,  stating 
his  qualification  to  be  registered  as  owner  of  a  share  in  a  British  ship. 
And  if  a  body  corporate  be  *transferee,  the  secretary  or  other  duly  r*rn-| 
appointed  public  officer  of  such  body  corporate  must  make  a  simi- 
lar declaration. (^)  The  bill  of  sale,  together  with  the  required  declara- 
tion, must  then  be  produced  to  the  registrar  of  the  port  at  which  the 
ship  is  registered,  who  thereupon  enters  in  the  registrar  the  name  of  the 

(l)  Stat.  17  &  18  Vict.  c.  104,  s.  45.  (ni)  Sects.  47,  48,  53. 

(n)  Sect.  50.  (o)  Sect.  55. 

Ip)  Stat.  18  &  19  Vict.  c.  91,  s.  11.              (7)  Stat.   17  &  18  Vict.  c.  104,  s.  56. 
. s, 

1  For  the  laws  of  the  United  States,  on     Brightly's  Dig.  of  the  Laws  of  the  U.  S.,  p. 
the  subject  of  certificates  of  registry,  see     826  et  seq. 


59  OF  cnosES  in  possession. 

transferee  as  owner  of  the  ship  or  share  comprised  in  the  bill  of  sale,  and 
also  endorses  on  the  bill  of  sale  the  fact  of  such  entry  having  been  made, 
with  the  date  and  hour  thereof.  All  bills  of  sale  are  entered  in  the  register 
book  in  order  of  their  production  to  the  registrar.(ry 

All  mortgages  of  any  ship,  or  share  therein,  are  to  be  in  a  form  pre- 
scribed by  the  act,  or  as  near  thereto  as  circumstances  permit ;  and  on 
the  production  of  such  instrument,  the  registrar  of  the  port  at  which  the 
ship  is  registered  is  to  record  the  same  in  the  register  book.(«)  Every 
such  mortgage  is  to  be  recorded  by  the  registrar  in  the  order  of  time  in 
which  the  same  is  produced  to  him  for  that  purpose,  and  the  registrar 
shall  by  memorandum  under  his  hand  notify  on  the  instrument  of  mort- 
gage that  the  same  has  been  recorded  by  him,  stating  the  day  and  hour 
of  such  record.(<)  If  there  is  more  than  one  mortgage  registered,  the 
mortgagees  are  entitled  to  priority  one  over  the  other  according  to  the 
date  at  which  each  instrument  is  recorded  in  the  register  book,  and  not 
according  to  the  date  of  each  instrument  itself,  notwithstanding  any  ex- 
press, implied  or  constructive  notice.(u)  No  mortgagee  is  to  be  deemed 
by  reason  of  his  mortgage  to  be  the  owner  of  a  ship,  or  of  any  share 
therein,  nor  is  the  mortgagor  to  be  deemed  to  have  ceased  to  be  owner, 
r*Rn"l  6^<^6P*  ^^  ^0  ^^^'  ^^  ™^y  ^®  necessary  for  making  *such  ship  or 
*-  share  available  as  a  security  for  the  mortgage  debt.(a;)     Every 

(r)  Sect.  57.  (s)  Sect.  66.  (t)  Sect.  67.  (u)  Sect.  69. 

[x)  Sect.  10.  See  European  Co.  v.  Royal  Mail  Co.,  4  K.  &  J.  676;  Dickinson  v. 
Kitchen,  8  E.  &  B.  789  (E.  C.  L.  R.  vol.  92) ;  Marriott  v.  The  Anchor  Reversionary 
Company,  Limited,  2  Giff.  457  ;  Collins  v.  Lamport,  L.  C.  11  Jur.  N.  S.  1 ;  13  W.  R. 
283;  34  L.  J.  Chan.  196;  Rusden  v.  Pope,  37  L.  J.  N.  S.  Exch.  137;  Law  Rep.  3 
Exch.  269. 

1  "  Our  Registry  Act  requires,  that  upon  transfer  ;  and  further  declares,  that  in  case 

every  transfer  of  a  registered  ship,  in -whole  she   is   not  so  registered  anew,  she  shall 

or  in  part,  to  any  other  citizen,  there  shall  not  be  entitled  to  the  privileges  and  bene- 

be  some  instrument  of  writing  in  the  na-  fits  of  a  ship  of  the  United  States.     Act  of 

ture  of  a  bill  of  sale,  which  shall  recite  at  1792,  ch.  45,  ^    14.     The  consequence  of 

length  the  certificate  of  registry;  other-  the  non-registry  is,  that  the  ship  becomes 

wise,  the  ship  shall  be  incapable  of  being  a  foreign  ship."     Abbott  on  Shipping,  by 

registered  anew.    Act  of  1792,  ch.  45,  §  14.  Story,  p.  96,  n.  2. 

But  the  act  does  not  invalidate  any  con-  The  intention  of  the  Act  of  March   2, 

tract    of  conveyance    made    between    the  1831,  on   the  subject  of  enrolled  and  li- 

parties,  unless   the   certificate   is   recited,  censed  vessels,  was  to  enable  such  vessels 

but  leaves   such    contract   to   be   decided  in  certain  cases,  to  engage  in  foreign  and 

upon,  according  to  the  general  principles  domestic  commerce  at  one  and  the  same 

of  the  common  law  :  Wendover  v.  Hoge-  time,  without  the  formality  of  a  registry, 

boom,   7   Johns.  308;    Hatch   v.   Smith,  5  not  exacting  the  restrictions,  nor  enforcing 

Mass..  42;  Weston  v.  Penniman,   1  Mason  the  penalties  imposed  on  registered  vessels. 

306.      Our  act,   however,   requires  every  The  Forrester,  1  Newb.  Adm.  81. 
ship   to   be    registered    anew   upon   every 


OF   SHIPS. 


60 


registered  mortgagee  is  to  have  power  absolutely  to  dispose  of  the  ship 
or  share  in  respect  of  which  he  is  registered,  and  to  give  effectual  receipts 
for  the  purchase-money;  but  if  more  persons  than  one  are  registered  as 
mortgagees  of  the  same  ship  or  share,  no  subsequent  mortgagee  shall, 
except  under  the  order  of  some  court  capable  of  taking  cognizance  of 
such  matters,  sell  such  ship  or  share  without  the  concurrence  of  every 
prior  mortgagee.(yj  Mortgages  of  ships  are  not  to  be  affected  by  the 
bankruptcy  of  the  mortgagor  ;{z)  and  a  form  is  provided  for  the  transfer 
of  mortgages. (a)  And  whenever  any  registered  mortgage  shall  have 
been  discharged,  the  registrar,  on  production  of  the  mortgage  deed  Avith 
a  receipt  for  the  mortgage  money  endorsee^  thereon,  duly  signed  and  at- 
tested, makes  an  entry  of  the  discharge  of  such  mortgage  in  the  register 
book  ;  and  upon  such  entry  being  made,  the  estate,  if  any,  which  passed 
to  the  mortgagee,  vests  in  the  same  persons  in  whom  the  same  would 
(having  regard  to  intervening  acts  and  circumstances,  if  any)  have  vested 
if  no  such  mortgage  had  ever  been  made. (6)^ 

{^/)  Stat.  17  &  18  Vict.  c.  104,  s.  71.  (z)  Sect.  72. 

{a)  Sect.  73.  (6)  Sect.  68. 


^  Congress  has  provided  for  the  record- 
ing of  any  mortgage  or  conveyance  of  a 
vessel,  by  an  act  entitled  "An  act  to  pro- 
vide for  recording  the  conveyances  of  ves- 
sels, and  for  other  purposes,"  passed  the 
29th  July,  1850.  The  incidental  effects  of 
this  act  upon  mortgages  and  conveyances 
of  vessels,  will  be  found  to  be  very  exten- 
sive. 

Sec.  1.  "  That  no  bill  of  sale,  mortgage, 
hypothecation,  or  conveyance  of  any  ves- 
sel, or  part  of  any  vessel,  of  the  United 
States,  shall  be  valid  against  any  person 
other  than  the  grantor  or  mortgagor,  his 
heirs  and  devisees,  and  persons  having 
actual  notice  thereof;  unless  such  bill  of 
sale,  mortgage,  hypothecation  or  convey- 
ance, be  recorded  in  the  office  of  the  col- 
lector of  the  customs  where  such  vessel  is 
registered  or  enrolled.  Provided,  That  the 
lien  by  bottomry  on  any  vessel,  created 
during  her  voyage,  by  a  loan  of  money  or 
materials,  necessary  to  repair  or  enable 
such  vessel  to  prosecute  a  voyage,  shall 
not  lose  its  priority,  or  be  in  any  way 
aflfected  by  the  provisions  of  this  act. 

Sec.  2.  "  And  be  it  further  enacted,  That 
the  collectors  of  the  customs  shall  record 


all  such  bills  of  sale,  mortgages,  hpyothe- 
cations  or  conveyances,  and  also,  all  cer- 
tificates for  discharging  and  cancelling 
any  such  convej^ance,  in  a  book  or  books 
to  be  kept  for  tliat  purpose,  in  the  order 
of  their  reception;  noting  in  said  book  or 
booJiS.  and  also  on  the  bill  of  sale,  mort- 
gage, hypothecation  or  conveyance,  the 
time  when  the  same  was  received,  and 
shall  certify  on  the  bill  of  sale,  mortgage, 
hypothecation  or  conveyance,  or  certifi- 
cate of  discharge  or  cancellation,  the 
number  of  the  book  and  page  where  re- 
corded ;  and  shall  receive,  for  so  recording 
such  instrument  of  conveyance,  or  certifi 
cate  of  discharge,  fifty  cents. 

Sec.  3.  ^'  And  be  it  further  enacted,  That 
the  collectors  of  the  customs  shall  keep 
an  index  of  such  records,  inserting  alpha 
betically  the  names  of  the  vendor  or  mort- 
gagor, and  of  the  vendee  or  mortgagee, 
and  shall  permit  said  index  and  books  of 
record  to  be  inspected  during  office  hours, 
under  such  reasonable  regulations  as  they 
may  establish,  and  shall,  when  required, 
furnish  to  any  person,  a  certificate,  setting 
forth  the  names  of  the  owners  of  any 
vessel  registered  or  enrolled,  the  parts  or 


60  OF    CIIOSES    IN    POSSESSION. 

Provision  is  made  enabling  any  registered  owner  to  empower  any  other 
person  or  persons  to  sell  any  entire  ship,  or  to  mortgage  any  ship  or  any 
share  therein,  at  any  place  out  of  the  country  or  possession  in  which  the 
port  of  registry  of  the  ship  is  situate.  For  this  purpose  what  are  called 
certificates  of  sale  or  mortgage  are  *granted  by  the  registrar  on 
[  "Ij  certain  conditions  mentioned  in  the  act,  and  in  forms  set  out  in 
the  schedule  thereto.(6')  The  above  are  the  principal  provisions  of  the 
act  so  far  as  relates  to  the  conveyance  of  ships.  For  more  particular 
information  the  reader  must  be  referred  to  the  acts  themselves,  which  are 
of  great  length.  It  may,  however,  be  added,  that  all  instruments  used  in 
carrying  into  effect  that  part  of  the  act  Avhich  relates  to  British  ships, 
their  ownership  and  registry,  are  exempt  from  stamp  duty.(c^)^ 

The  Admiralty.  Court  Act,  1861, (g)  confers  on  the  High  Court  of 
Admiralty  jurisdiction  to  decide  all  questions  arising  between  the  co- 
owners,  or  any  of  them,  touching  the  ownership,  possession,  employment 
and  earnings  of  any  ship  registered  in  any  port  in  England  or  Wales,  or 
any  share  thereof;  and  it  empowers  that  court  to  settle  all  accounts  out- 
standing and  unsettled  between  the  parties  in  relation  thereto,  and  to 
direct  the  ship  or  any  share  thereof  to  be  sold,  and  to  make  such  order  in 
the  premises  as  to  the  court  shall  seem  fit.(/f     The  same  act  also  gives 

(c)  Sects.  76  et  seq.     See  Orr  v.  Dickinson,  1  John.  1. 

(d)  Stat  17  &  18  Vict.  c.  105,  s.  9.  (e)  Stat  23  Vict.  c.  10. 
(/)  Sect.  8. 


proportions  owned  by  each  (if  inserted  in  ^  Previously,  however,  to  the  above  Act 
the  register  or  enrolment),  and  also  the  of  Parliament,  the  English  Court  of  Admi- 
material  facts  of  any  existing  bill  of  sale,  ralty,  without,  however,  otherwise  dis- 
mortgage, hypothecation,  or  other  incum-  claiming  this  authority,  declined  to  exer- 
brance  upon  such  vessel,  recorded  since  cise  it,  inasmuch  as  it  had  been  asserted 
the  issuing  of  the  last  register  or  enrol-  by  the  Court  of  King's  Bench,  in  the  reign 
ment,  viz.,  the  date,  amount  of  such  in-  of  George  II.,  that  the  Court  of  Admiralty 
cumbrance,  and  from  and  to  whom,  or  in  had  no  authority  to  compel  a  sale,  in  any 
whose  favor  made  ;  the  collector  shall  re-  case  of  disagreement  between  part  owners, 
ceive  for  each  such  certificate,  one  dollar."  In  this  country  this  power  has  been 
Brightly's  Dig.  Laws  U.  S.  p.  833.  asserted,  and  in  two  reported  cases  at 
1  The  United  States  stamp  duty  on  the  least,  has  been  exercised  by  the  courts, 
bill  of  sale  of  a  ship  or  vessel,  is  fifty  cents  In  the  early  case  of  Skinner  v.  The  Sloop 
for  every  five  hundred  dollars  of  the  con-  Hope,  Bee's  Adm.  2,  in  the  District  Court 
sideration  thereof,  or  fractional  part  of  the  of  the  United  States  for  the  District 
sum  of  five  hundred  dollars  when  the  con-  of  South  Carolina,  Judge  Bee  decreed  a 
sideration  is  less  than  five  hundred  dollars,  sale,  on  the  petition  of  the  owner  of  one 
or  greater  than  five  hundred  dollars,  or  a  moiety,  against  the  owner  of  the  other 
multiple  thereof.  Act  of  Congress  of  June  moiety  of  the  vessel.  And  in  the  case  of 
30,  18G4,  §  170,  Sched.  B,  2  Brightly's  U.  Davis  Brooks  v.  The  Brig  Seneca,  Gilp. 
S.  Dig.  p.  377,  §  356.  10,   where  the    owners   were   equally  di- 


OF   SHIPS. 


61 


the  Court  of  Admiralty  jurisdiction  over  any  claim  in  respect  of  any 
mortgage  duly  registered  according  to  the  provisions  of  the  Merchant 
Shipping  Act,  1854. (^) 

(g)  Sect.  11.  See  also  sects.  10,  12  and  13.     By  Stats.  31  &  32,  Vict.  c.  71,  and  32  &  33 
Vict.  c.  51,  admiralty  jurisdiction  is  given  to  some  of  the  County  courts. 


Tided  in  opinion,  each  wishing  to  employ 
the  brig  upon  a  distinct  voyage,  the  learned 
Judge  of  the  District  Court  of  the  United 
States  for  the  Eastern  District  of  Pennsyl- 
vania, having,  in  an  elaborate  opinion, 
decided  against  the  jurisdiction,  his  judg- 
ment was  reversed  by  Justice  Washington, 
on  appeal  to  the  Circuit  Court.  1  Conkl. 
U.  S.  Admiralty,  p.  324. 

But  it  has  been  held  that  the  United 
States  courts  sitting  in  admiralty,  have 
no  power  to  decree  the  sale  of  a  ship  to 
satisfy  a  mortgage :  Bogart  v.  Steamboat 
John  Jay,  17  How.  U.  S.  399. 

In  order  to  avoid  disputes  between  the 
different  owners  of  a  ship  or  other  vessel, 
on  the  subject  of  her  management,  it  fre- 
quently happens  that  the  owners  unite  in 
appointing  or  selecting  one  of  their  num- 
ber to  be  her  manager,  who  is  called  the 
ship's  husband.  A  ship's  husband  is  a 
common  expressive  maritime  phrase,  to 
denote  a  peculiar  sort  of  agency,  created 
and  delegated  by  the  owner  in  regard  to 
the  repairs,  equipment,  management,  and 
other  concerns  of  the  ship.  He  is  under- 
stood to  be  the  general  agent  of  the  owners, 
in  regard  to  all  the  affairs  of  the  ship  in 
her  home  port:  Story,  Agency,  §  35,  and 
notes  ;  3  Kent  175. 

The  ship's  husband,  or  managing  owner, 
may  bind  the  other  owners  for  the  outfit, 
care,  and  employment  of  the  vessel,  but 
he  has  no  power  to  purchase  a  cargo  on 
their  credit,  without  authority  from  them  : 
Hewitt  V.  Buck,  17  Maine  147 ;  Bell  v. 
Humphries,  2  Stark.  286. 

It  is  not  his  duty  as  ship's  husband  to 
insure  a  vessel,  and  neither  he,  nor  part 
owners,  who  insure  the  interest  of  their 
co-owners  in  a  vessel  without  express  au- 
thority, can  recover  the  premium  paid  by 
them  :  Turner  v  Burrows,  8  Wendell  144  ; 
Abbott  on  Shipping,  p.  136,  n.  p. 


Sims  V.  Brittain,  4  B.  &  Ad.  375.  Law 
Magazine  article,  "  Mercantile  Law,"  No. 
13.  See  Kent's  Commentaries,  p.  147. 
See  also  Story's  Commentaries  on  Agency, 
p.  32.  "  The  ship's  husband,"  says  Beawes 
(Lex  Mercatoria,  p.  52),  "  is,  as  it  were,  a 
steward  at  land,  to  the  owner  of  the  ship, 
as  the  officer  bearing  that  name  is  on 
board,  when  the  ship  is  at  sea."  "  The 
ship's  husband,"  says  Mr.  Bell  (Principles 
of  the  Law  of  Scotland,  p.  449),  "is  the 
agent  or  commissioner  for  the  owners. 
He  may  be  a  part  owner  or  a  stranger. 
His  powers  are  by  mandate  or  written 
commission  by  the  owners,  or  by  verbal 
appointment;  the  latter  chiefly,  where  he 
is  also  part  owner.  His  duties  are, — 1.  To 
arrange  everything  for  the  outfit  and  repair 
of  the  ship,  stores,  repairs,  furnishings  ;  to 
enter  into  contracts  of  affreightment ;  to 
superintend  the  papers  of  the  ship.  2.  His 
powers  do  not  extend  to  the  borrowing  of 
money  ;  but  he  may  grant  bills  for  furnish- 
ings, stores,  repairs,  and  the  necessary 
engagements,  which  will  bind  the  owners, 
although  he  may  have  received  money 
wherewith  to  pay  them.  3.  He  may  re- 
ceive the  freight,  but  is  not  entitled  to 
take  bills  instead  of  it,  giving  up  the  lien 
by  which  it  is  secured.  4.  He  has  no 
power  to  insure  for  the  owner's  interest, 
without  special  authority.  5.  He  cannot 
give  authority  to  a  law  agent  that  will 
bind  his  owners,  for  expenses  of  a  lawsuit. 
6.  He  cannot  delegate  his  authority."  See 
also  1  Bell's  Commentaries,  p  411  ;  Abbott 
on  Shipping,  p.  136,  n.  p. 

Where  a  person  supplied  stores  to  a  ship 
on  the  order  of  one  of  several  owners,  who 
acted  as  the  ship's  husband,  and  took  his 
note  in  payment,  and  gave  a  receipt  in 
full,  it  was  held  that  all  the  owners  were 
liable,  the  note  not  being  paid  :  Schemer- 
horn  V.  Loines,  7  Johns.  311. 


61 


OF   CHOSES   IN   POSSESSION. 


Sometimes  a  vessel  is  hired  for  a  given  voyage.  The  instrument  by 
which  such  hiring  is  effected  is  termed  a  charter-party. (A)  Whether  the 
Icfal  possession  of  tlie  sliip  passes  to  the  hirer  (or  charterer,  as  he  is 
called)  depends  on  the  stipulations  contained  in  the  charter-party,  such  as 
r*fi9l  whether  the  charterer  or  the  owner  is  to  *provide  the  seamen,  and 
^  "^  keep  the  vessel  in  order.(/)  Where  a  merchant  ship  is  open  to 
the  conveyance  of  goods  generally,  it  is  called  digeyieralsMp.^  The  receipt 
for  the  goods  given  by  the  master  is  called  the  hill  of  lading  :^  it  states 

{h)  The  stamp  duty  on  a  charter-party  is  now  sixpence.  Stat.  28  &  29  Vict.  c.  96, 
s.  7.»  I 

(t)  Dean  v.  Hogg,  10  Bing.  345  (E.  C.  L.  R.  vol.  25) ;  Fenton  v.  City  of  London  Steam 
Packet  Company,  8  A.  &  E.  835  (E.  C.  L.  R.  vol.  35). 


The  managing  owner  of  a  vessel  repre- 
sents the  interests  of  all,  and  has  the  same 
power  which  the  major  part  in  interest 
have,  with  respect  to  the  change  of  em- 
ployment, and  the  preparation  and  outfit 
of  the  vessel,  in  a  manner  suited  to  her 
profitable  employment,  in  the  business  to 
which  she  is  destined :  Hall  v.  Thing,  10 
Shep.  461. 

The  ship's  husband,  or  managing  owner 
may  bind  the  other  owners  for  the  outfit, 
care,  and  employment  of  the  vessel,  but 
he  has  no  power  to  purchase  a  cargo  on 
their  credit,  without  authority  from  them  : 
Hewett  V.  Buck,  5  Shep.  147. 

In  the  absence  of  any  special  agreement 
on  the  subject,  the  ship's  husband  is  pre- 
sumed to  have  authority  to  do  everything 
necessary  to  be  done  for  the  employment 
of  the  vessel ;  Revens  v.  Lewis,  2  Paine 
202  ;  and  the  fact  of  one  acting  as  such, 
is  sufficient  evidence  of  his  appointment 
without  any  formal  proof :  6  H.  &  N. 
145. 

For  further  description  of  the  proper 
functions  and  powers  of  a  ship's  husband, 
see  Collyer  on  Partnership,  B.  5,  ch.  3, 
I  1213,  4th  ed. 

^  The  United  States  stamp  duty  on  a 
charter-party,  is  one  dollar  where  the 
registered  tonnage  of  the  vessel  does  not 
exceed  one  hundred  and  fifty  tons ;  three 
dollars,  where  exceeding  one  hundred  and 
fifty  tons  it  does  not  exceed  three  hundred 
tons ;  five  dollars,  where  exceeding  three 
hundred  tons  it  does  not  exceed  six  hun- 


dred tons  ;  and  ten  dollars  where  it  exceeds 
six  hundred  tons.  Act  of  Congr.  of  June 
30,  1864,  I  170,  Sched.  B,  2  Brightly's  U.  S. 
Dig.  p.  377,  I  356. 

^  It  is  usual  for  the  mate  to  sign  a  re- 
ceipt for  the  goods  shipped,  at  the  time  of 
their  delivery  at  or  on  board  the  vessel, 
and  to  deliver  it  to  the  shipper.  This 
again  is  surrendered,  when  the  bill  of  lad- 
ing has  been  signed  by  the  master  and 
delivered  to  the  shipper. 

3  A  bill  of  lading  is  the  written  acknowl- 
edgment of  the  master  of  a  vessel,  that  he 
has  received  certain  specified  merchandise 
from  the  shipper,  to  be  conveyed,  on  the 
terms  therein  expressed,  to  their  destina- 
tion, and  at  that  place  to  be  delivered  to 
the  parties  therein  designated  :  Abbott  on 
Shipp.  323.  Much  legal  learning  and 
talent  have  been  exercised  in  developing 
the  law  of  this  instrument,  the  principal 
heads  of  which  may  be  succinctly  enumer- 
ated as  follows : 

1st.  The  effect  of  a  bill  of  lading,  as 
evidence  of  the  ownership  of  the  goods  by 
the  consignees. 

A.,  of  Liverpool,  shipped  goods,  which, 
by  the  bill  of  lading,  were  to  be  delivered 
to  B.  or  his  assigns,  in  Philadelphia.  The 
freight  was  payable  in  Liverpool,  and  it 
appeared  that  the  goods  were  shipped  on 
account  of  A.  Held,  that  the  bill  of  lading 
vested  the  property  in  B.,  who  might 
maintain  an  action  in  his  own  name  against 
the  owner  of  the  ship  for  the  negligent 
carriage  of  the  goods :  Griffith  v.  Ingledew, 


OF   SHIPS. 


62 


that  the  goods  are  to  be  delivered  to  the  consignee  or  his  assigns  ;  and  by 
the  custom  of  merchants,  the  bill  of  lading,  when  endorsed  by  the  consignee 


6  S.  &  R.  629.  See  also  Sammerell  v. 
Elder,  1  Binn.  106;  Ryberg  v.  Snell,  2 
Wash.  C.  C.  403;  Arbuckle  v.  Thomp- 
son, 37  Penn.  St.  175  ;  The  Sally  Magee,  3 
Wall.  U.  S.  451.  But  the  property  will 
not  vest  in  the  consignee,  until  the  bill  of 
lading  has  been  delivered  to  him  by  the 
consignor,  or  some  one  authorized  by  him 
to  make  this  delivery  :  Walter  v.  Ross,  2 
Wash.  C.  C.  283 ;  Stille  v.  Traverse,  3 
Wash.  C.  C.  43 ;  Allen  v.  Williams,  12 
Pick.  297  ;  Low  v.  De  Wolf,  8  Id.  100  ; 
Graham  v.  Ledda,  17  La.  Ann.  45. 

2d.  The  effect  of  an  endorsement  of  a 
bill  of  lading,  as  a  transfer  of  property. 

Bills  of  lading  are  transferable  by  en- 
dorsement ;  and  when  thus  transferred  by 
a  consignee,  to  a  bo7id  fide  purchaser  for  a 
good  consideration,  without  notice  of  ad- 
verse claims,  they  pass  the  legal  title  of 
the  property,  to  the  endorsee.  And  where 
the  endorsee,  without  any  laches  on  his 
part,  takes  possession  of  the  property  as 
soon  as  its  arrival  from  sea  is  known  to 
him,  an  attachment  levied  on  the  property 
after  the  assignment,  will  be  ineffectual 
and  inoperative  :  Winslow  v.  Norton,  29 
Maine  (16  Shep.)  419  ;  The  Mary  Ann 
Guest,  Olcott's  Adm.  498.  So,  where 
the  master  of  a  vessel  signs  bills  of  lading 
to  third  parties,  bona  fide  assignees  of  such 
bills,  for  value,  will  be  entitled  to  hold  the 
property  as  against  the  charterer  of  the 
vessel :  Zachrisson  v.  Ahman,  2  Sandf.  Sup. 
Ct.  68.  See  also.  Chandler  v.  Belden, 
18  Johns.  157  ;  Dawes  v.  Cope,  4  Binn. 
258  ;  Walter  v.  Ross,  2  Wash.  C.  C. 
294  ;  Dows  v.  Rush,  28  Barb.  157.  But 
though  a  bill  of  lading  is  prima  facie  evi- 
dence of  property,  in  the  hands  of  a  bond 
fide  endorsee  for  a  valuable  consideration, 
yet  the  endorsement  may  be  explained  in 
certain  circumstances,  according  to  the 
the  intention  of  the  party :  Low  v.  De 
Wolf,  8  Pick.  107 ;  Hibbert  v.  Carter,  1 
T.  R.  745  ;  and  a  fraudulent  holder  of  the 
bill,  can  pass  no  title  to  the  goods  in  such 
bill,   to    a   purchaser   for   value,    without 


notice  of  the  fraud  :  Decan  v.  Shipper,  35 
Penn.  St.  239  ;  Dows  v.  Green,  24  N.  Y. 
638. 

Nor  will  the  endorsement  of  a  bill  of 
lading,  without  a  delivery  of  it,  transfer 
the  propertj'  in  the  goods  mentioned  in  it, 
as  against  the  attaching  creditors  of  the 
endorser:  BufSngton  v.  Curtis,  15  Mass. 
528.  See  also,  on  this  head,  the  cases  cited 
in  Abbott  on  Shipp.  by  Story  p.  534,  note 
(1) ;  and,  that  possession  of  one  of  the 
three  usual  bills  of  lading,  is  not  of  itself 
sufficient  evidence  of  the  ownership  of 
the  goods,  see  Graff  v.  Caldwell,  8  Rich. 
529;  s.  c.  9  Id.  325;  Blossom  v.  Cham- 
pion, 37  Barb.  554  ;  and  the  fact  that  the 
bill  has  been  delivered  without  tndorse- 
ment,  to  another  than  the  consignee,  to 
cover  advances  made  upon  it  by  him,  can- 
not convey  to  him  any  other  right  than  a 
lien  for  the  advances  :  Bissell  v.  Steel,  28 
Leg.  Intel.  157.  See  further  on  the  sub- 
ject of  a  transfer  of  a  bill  of  lading  by  en- 
dorsement and  delivery,  rtn<e  p.  6,  note  1. 

3d.  The  effect  of  a  bill  of  lading,  as  a 
contract. 

(A)  As  to  the  condition,  contents,  and 
quantity  of  the  goods  specified  in  the  in- 
strument. 

An  acknowledgment  in  a  bill  of  lading, 
that  certain  cases  of  goods  were  "  shipped 
in  good  order,"  "  contents  unknown,"  ex- 
tends only  to  the  external  condition  of  the 
cases,  and  not  to  the  condition  or  package 
of  the  goods:  Clark  u.  Barnwell,  12  How- 
ard 272  ;  and  so  of  bales  of  cotton 
described  in  a  bill  of  lading  as  "  in  good 
order  and  well-conditioned:"  Bradstreet 
V.  Heran,  2  Blatch.  C.  C.  116;  and  so  far 
as  a  bill  of  lading  is  a  receipt,  as  distin- 
guished from  a  contract,  it  may  be  explain- 
ed by  parol  evidence :  The  Lady  Frank- 
lin, 8  Wall.  U.  S.  325  ;  and  see  West  v. 
Berlin,  3  Clarke  532.  But  in  an  action 
against  the  owners  of  a  steamboat,  to 
recover  for  the  loss  of  a  quantity  of  mo- 
lasses contained  in  barrels,  which  the  cap- 
tain of  the  vessel  had  received  on  board 


62 


OF   CHOSES   IN   POSSESSION. 


"with  his  name,  becomes  a  negotiable  instrument,  the  delivery  of  which 
passes  the  property  in  the  goods  ;{k)  but  it  was  formerly  held  that  the 

(A-)  Caldwell  v.  Ball,  1  T.  Rep.  205,  216. 


at  New  Orleans,  and  for  which  he  signed 
a  bill  of  lading,  stating  it  to  have  been  re- 
ceived in  good  order  and  well-condition- 
ed, and  to  be  deliverable  to  the  plaintiff 
in  Pittsburgh,  it  was  held,  that  the  defend- 
ant could  not  go  into  evidence  to  prove 
that  the  barrels  were  not  full  when  deliv- 
ered on  board,  and  that  they  were  in  so 
bad  order  as  to  leak..  In  such  case,  the 
loss  of  hoops,  and  leakage  occasioned 
thereby,  which  occurred  while  the  con- 
signor was  carrying  the  casks  to  the  wharf, 
and  unloading  them  from  the  drays,  so 
that  the  captain  might  put  them  in  his 
boat,  when  seen  and  known  by  the  car- 
rier, was  not  such  a  latent  defect  as  would 
excuse  the  carrier :  Warden  v.  Greer, 
6  Watts  424.  And  see  also  Bowman  v. 
Kennedy,  1  Am.  L.  Reg.  119;  Ship  How- 
ard V.  Wissman,  18  How.  U.  S.  231;  Za- 
rega  v.  Poppe,  1  Abb.  Adm.  397  ;  Nelson 
V.  Stephenson,  5  Duer  538;  Columbo,  3 
Blatch.  C   C.  521. 

And  although,  as  between  the  shipper 
of  goods  and  the  owner  of  the  vessel,  the 
bill  of  lading  may  be  explained,  so  far  as 
to  show  the  quantity  of  the  goods,  their 
condition,  and  the  like;  yet,  as  between 
the  owner  of  the  vessel,  and  an  assignee 
for  a  valuable  consideration,  paid  on  the 
strength  of  the  bill  of  lading,  it  may  not 
be  explained:  Dickerson  v.  Seelye,  12 
Barb.  S.  C.  99  ;  Bradstreet  v.  Heron,  1  Abb. 
Adm.  209  ;  White  v.  Van  Kirk,  25  Barb. 
16. 

As  a  general  rule,  an  action  founded  on 
the  express  contract  contained  in  a  bill  of 
lading,  should  be  instituted  by  the  shipper, 
•with  whom  the  master  contracted,  or  by 
the  owner  of  the  goods,  where  the  shipper 
acted  as  his  agent.  An  endorsement  of  the 
bill  of  lading,  does  not  assign  the  contract 
contained  in  it.  When  a  bill  of  lading,  by 
which  goods  are  made  deliverable  to  a 
consignee  by  name,  is  transmitted  to  him 
for  advances,  or  to  indemnify  him  against 


liabilities  in  respect  to  the  consignment 
which  they  represent,  it  vests  in  him  a 
property  in  the  goods,  general  or  special, 
at  the  time  of  the  delivery  on  board,  and 
renders  the  master  responsible  to  him : 
Dows  V.  Cobb,  12  Barb.  S.  C.  310. 

A  charter-party  was  made  between  A. 
and  B.,  by  which  A.  agreed  to  bring  from 
Pictou,  to  New  York,  a  cargo  of  coal,  the 
freight  of  which  should  be  paid  at  the 
rate  of  four  dollars  per  chaldron,  Pictou 
measure  of  thirty  cwt.,  by  an  approved 
acceptance  within  thirty  days  from  dis- 
charging, for  which  twelve  days  were 
allowed.  The  bill  of  lading  stated  the 
cargo  at  four  hundred  chaldrons,  weight 
of  which  was  unknown.  It  turned  out 
that  there  were  nearly  four  hundred  and 
sixty  chaldrons,  of  thirty  cwt.  B.'s  agent 
offered  to  pay  in  cash  for  four  hundred 
chaldrons  at  the  agreed  rate,  which  was 
refused  by  A.  Held,  that  the  words 
"thirty  cwt."  were  descriptive  of  the 
weight  of  a  chaldron,  and  therefore  that 
A.  was  entitled  to  freight  for  four  hundred 
and  sixty  chaldrons,  and  that  B.'s  offer  to 
pay  but  for  four  hundred  chaldrons,  and 
his  refusal  to  pay  any  more,  released  A. 
from  his  obligation  to  wait  thirty  days 
after  the  discharge,  within  which  time  he 
began  this  suit:  Ward  v.  Whitney,  3 
Sandf.  Sup.  Ct.  399. 

(B)  The  effect  of  a  bill  of  lading,  as  a 
contract,  and  who  may  sue  on  it. 

A  bill  of  lading  promising  to  deliver 
goods  to  A.  or  his  assigns,  was  sent  by  A. 
to  B.,  unendorsed,  in  a  letter  containing  no 
words  of  transfer.  Held,  that  B.  could 
maintain  no  action  against  C,  the  owner 
of  the  vessel,  as  surviving  owner  or  as 
assignee  of  the  goods,  and  that  C.  having 
delivered  part  of  the  goods  to  B.  was  not 
thereby  estopped  to  deny  his  claim  to  the 
residue:  Stone  v.  Swift,  4  Pick.  389. 

Where  the  master  of  a  vessel  signed  a 
bill  of  lading  to   deliver  the  whole   of  a 


■OF   SHIPS. 


62 


right  to  sue  upon  the  contract  contained  in  the  bill  of  lading  to  carry 
and  deliver  the  goods  did  not  pass  by  the  endorsement. (?)  It  is,  hoAvcver, 
now  enacted,  that  every  consignee  of  goods  named  in  a  bill  of  lading,  and 
every  endorsee  of  a  bill  of  lading,  to  whom  the  property  in  the  goods 
therein  mentioned  shall  pass  upon  or  by  reason  of  such  consignment  or 
endorsement,  shall  have  transferred  to  and  vested  in  him  all  rights  of  suit, 
and  be  subject  to  the  same  liabilities  in  respect  of  such  goods,  as  if  the 
contract  contained  in  the  bill  of  lading  had  been  made  with  himself.(w!) 
The  money  payable  for  the  hire  of  a  ship,  or  for  the  carriage  of  goods  in 
it,  is  the  freight  which,  whether  accrued  or  accruing,  is  assignable  in  the 
same  manner  as  any  other  ordinary  chose  in  action. (w)  The  delivery  of 
goods  imported  from  foreign  parts,  and  the  lien  of  .the  ship  owner  for 
their  freight,  are  now  regulated  by  the  provisions  of  the  Merchant  Shipping 
Act  Amendment  Act,  1862. (o) 

{I)  Thompson  v.  Dominy  14  M.  &  W.  403.  (m)  Stat.  18  &  19  Vict.  c.  Ill,  s.  1. 

(n)  Douglas  v.  Russel,  4  Sim.  524  1  M.  &   K.  488  ;  Leslie  v.  Guthrie,  1  New   Cases 
697  ;  Lindsay  v.  Gibbs,  22  Beav.  522. 
(o)  Stat.  25  &  26  Vict.  c.  63,  ss.  66-78. 


quantity  of  coffee,  shipped  on  board  his 
vessel,  to  one  party,  and  subsequently 
signed  another  bill  of  lading,  to  deliver  a 
part  of  the  same  to  another  party,  held, 
that  he  was  liable  to  the  second  party, 
although  he  had  delivered  the  whole  of 
the  coffee  to  the  first:  Stille  v.  Traverse,  3 
Wash.  C.  C.  43. 

A.,  an  Rgent  of  B.,  contracted  with  C, 
a  common  carrier,  to  deliver  a  quantity  of 
wheat  to  B.,  in  New  York.  A  bill  of 
lading  was  drawn  and  signed,  containing 
the  agreement.  The  wheat  having  been 
delivered  to  D.,  in  New  York,  for  whom  A. 
was  also  agent,  B.  sued  C.  for  damages, 
for  breach  of  contract,  and  evidence  was 
offered,  that  A.  gave  parol  directions  to 
C,  to  deliver  the  wheat  to  D.  Held,  that  a 
bill  of  lading  was  of  a  twofold  character; 
as  far  as  it  was  a  receipt,  that  it  could  be 
explained  by  parol  evidence,  but  as  a  con- 
tract for  forwarding,  it  could  not  be  al- 
tered by  parol  testimony,  and  that  such 
evidence,  therefore,  in  this  case  was  inad- 
missible: Wolfe  V.  Myers,  3  Sandf.  Sup. 
Ct.  7.  And  see  also  Meyer  v.  Peck,  33 
Barb.  532  j  Steamboat  John  Owen  v. 
Johnson,  2  Ohio  N.  S.  142  ;  Fitzhugh  v. 
Wiman,  5  Selden  559. 


It  is  a  doctrine  of  the  English  courts, 
that  carriers  who  receive  merchandise  to 
be  transported  beyond  the  line  of  their 
own  route,  without  any  special  agreement, 
do  not  limit  their  liability  to  their  own 
route  only,  but  are  held  liable  for  losses 
which  may  occur  beyond  it:  Scotthorn  v. 
The  So.  Staffordshire  Railw.  Co.,  18  Eng. 
L.  &  Eq.  553;  Muschamp  v.  The  Lan- 
caster, &c.,  8  M.  &  W.  421 ;  Croach 
V.  The  London  &  N.  Western  Railw.  Co., 
25  Eng.  L.  &  Eq.  287.  But  the  rule  to 
be  deduced  from  the  American  decisions, 
is  not  so  stringent,  merely  holding  the 
carrier  bound  to  transport  and  deliver 
according  to  the  established  usages  of 
business  :  Van  Sautvoord  v.  St.  John,  25 
Wend.  669 ;  Farmers'  Bk.  v.  Champlain 
Trans.  Co.,  18  Vt.  140,  and  23  Id.  209; 
Hood  V.  N.  Y.  &  New  Haven  R.  R.,  22 
Conn.  508-512;  Nutting  v.  Connecticut 
River  R.  R.  Co.,  1  Gray  502;  Perkins 
V.  Portland,  &c.,  R.  R.  Co.,  47  Maine 
573 ;  Angle  v.  Mississippi,  &c.,  R.  R.  Co.,  9 
Iowa  487  ;  and  that  his  engagement  as  to 
any  other  route  than  his  own  is  merely 
to  forward:  Camden  &  A.  R.  R.  Co.  v. 
Forsyth,  61  Penn.  St.  81. 


i:*6-51  *PART  II. 

OF  CIIOSES  IN  ACTION. 


CHAPTER  I. 

OF   ACTIONS    EX    DELICTO. 


In  addition  to  movable  goods,  choses  iii  possession,  we  have  ob- 
served,(a)  that  there  existed  also  in  ancient  times  cJioses  in  action,  or  the 
liberty  of  proceeding  in  the  courts  of  law  either  to  recover  pecuniary 
damages  for  the  infliction  of  a  wrong  or  the  non-performance  of  a  contract, 
or  else  to  procure  the  payment  of  money  due.  The  actions  to  be  thus 
brought  were,  of  course,  not  real,  but  purely  personal  actions.  Real 
actions  were  brought  for  the  recovery  of  land  or  real  property ;  but  the 
above-mentioned  actions  were  against  persons  only,  and  the  object  was 
merely  to  obtain  from  them  money,  being  the  only  recompense  then 
generally  available.  In  this  respect,  however,  the  law  has  recently 
undergone  some  change :  for  the  Common  Law  Procedure  Act,  1854, 
now  enables  the  plaintiff  in  any  action,  except  replevin  and  ejectment,  in 
any  of  the  superior  courts,  to  claim  a  writ  of  mandamus  commanding  the 
defendant  to  fulfil  any  duty  in  the  fulfilment  of  which  the  plaintiff  is  person- 
ally interested,  and  by  the  non-performance  of  which  he  way  sustain 
damage.(6)^     And  it  also  provides,  that  in  all  cases  of  breach  of  contract 

(a)  Ante,  p.  4. 

{b)  Stat.  17  &  18  Vict,  c.  125,  ss.  68,  69;  Norris  v.  Irish  Land  Company,  8  E.  &  B. 
512  (E.  C.  L.  R.  vol.  92). 

^  The  appropriate  functions  of  a  writ  of  late,  not  to  restrain,  the  exercise  of  official 

mandamus,  SLTQ  the  enforcement  of  duties  functions:  School  Directors  v.  Anderson, 

to  the  public,  by  officers  and  others,  who  45    Penn.     St.    388 ;    Howe    v.    Commis- 

neglect  or  refuse  to  perform  them,  and  for  sioners,  47   Id.  361  ;    City  v.   Johnson,  Id. 

which    there    is    no    other   special    legal  382  ;  Lamb  v.  Lynd,  44  Id.  336  ;  but  it  does 

remedy ;  Commonwealth  v.  Commissioners,  not  lie  to  compel  a  judge  of  a  lower  court 

&c.,37  Penn.  St.  237;  Gillespie  y.  Wood,  to   seal  a   bill  of  exceptions,  the  remedy 

4  Humph.  437;  Board  of  Police  v.  Grant,  being  by  special  writ:  Consow  v.  Schloss, 

9  Sm.  &  Marsh.  97.     Its  office  is  to  stimu-  55   Penn.   St.   28 ;  People  v.  Jameson,   40 


OF   ACTIONS    EX   DELICTO. 


63 


or  other  injury,  where  the  party  injured  is  entitled  to  maintain  and  has 
brought  an  action,  he  may  claim  a  writ  of  injunction  against  the 
*repetition  or  continuance  of  such  breach  of  contract  or  other  |-^<r. j^-i 
injury,  or  the  committal  of  any  breach  of  contract  or  injury  of 
a  like  kind,  arising  out  of  the  same  contract  or  relating  to  the  same 
property  or  right  ;(^)  and  the  Common  Law  Procedure  Act,  1860,  requires 
that  in  the  above  cases  the  costs  of  the  writ  of  mandamus  or  injunction 
shall  be  paid  by  the  defendant,  unless  otherwise  ordered  by  the  court  or 
a  judge. (cZ)  But  the  rights  thus  given  do  not  appear  to  have  materially 
interfered  with  the  wider  and  more  ancient  jurisdiction  of  the  Court  of 
Chancery  in  issuing  an  injunction  to  restrain  the  wrongdoer  from  con- 
tinuing his  wrong,  or  in  decreeing  the  specific  performance  of  a  contract. 
By  a  recent  statute  the  Court  of  Chancery  is  empowered  to  award  pe- 
cuniary damages,  either  in  addition  to  or  in  substitution  for  an  injunction 
or  specific  performance. (e)^     In  many  cases,  however,  money  alone  is  a 

(c)  Stat.  17  &  18  Vict.  c.  125,  ss.  79-82.     {d)  Stat.  23  &  24  Vict.  c.  126,  s.  32. 
\e)  Stat.  21  &  22  Vict.  c.  27,  s.  2;  Lewers  v.  Earl  of  Shaftesbury,  V.-C.  W.,  2  Law 
Rep.  Eq.  270. 


111.  93 ;  or  to  control  judicial  action  in 
the  approval  of  a  bond :  E.  v.  Milwaukee 
R.  R.  Co.,  5  Wall.  U.  S.  188 ;  as  a  remedy 
to  enforce  mere  private  rights  of  property, 
it  is  restricted  to  cases  where  the  appli- 
cant has  no  adequate  remedy,  by  action,  in 
the  due  course  of  the  common  law :  Wil- 
kinson V.  Providence  Bank,  3  R.  I.  22 ; 
Evans  v.  Philadelphia  Club,  50  Penn.  St. 
107;  and  where  there  is  a  remedy  by 
action  there  c&nnot  he  &  mandamus :  Green 
V.  Wood,  35  Barb.  653. 

Where  a  private  right  is  the  object  of 
mandamus,  the  person  interested  should  be 
the  relator;  but  where  the  object  is  the 
execution  of  a  public  statute,  any  citizen 
may  be  a  relator,  and  he  is  not  bound  to 
show  a  special  interest  in  the  object: 
County  of  Pike  v.  The  State,  11  111. 
202.  But  the  writ  does  not  lie  against  a 
private  citizen  :  The  State  v.  Powers,  14 
Geo.  388. 

In  California,  it  lies  by  statute,  where 
it  is  the  only  means  of  putting  one  in  pos- 
session of  property,  to  which  he  is  entitled 
under  a  decree:  Fremont  v.  Crippen,  10 
Cal.  211. 

1  In  Hatch  v.  Cobb,  4  Johns.  Ch.  560, 
it   was    said    by    Chancellor    Kent,    that 


"  though  equity,  in  very  special  cases,  may 
possibly  sustain  a  bill  for  damages,  on  a 
breach  of  contract,  it  is  clearly  not  the 
ordinary  jurisdiction  of  the  Court." 
Hence,  where  a  contract  has  been  made, 
and  the  defendant  has  disabled  himself 
from  performing  it,  and  a  specific  perform- 
ance is  asked,  compensation  will  begi'^en  : 
Lee  V.  Howe,  27  Misso.  521  ;  Hook  v. 
Ross,  1  Hen.  &  M.  310;  Dustin  «.  New- 
comer, 6  Ham.  49;  Mitchell  «.  Shepp- 
ard,  13  Texas  484;  Woodward  «.  Harris, 
2  Barb.  S.  C.  439;  Barlow  v.  Scott,  24 
N.  Y.  40  ;  Davis  v.  Parker,  14  Allen  94, 
and  in  cases  of  defective  execution,  if 
the  contract  can  be  substantially  executed, 
equity  regards  compensation  as  equiva- 
lent to  performance :  Philadelphia  & 
Reading  R.  R.  Co.  v.  Lehigh  Nav.  Co.,  36 
Penn.  St.  311  ;  but  see  Lewis  v.  Yale, 
4  Florida  418.  If,  however,  the  plain- 
tiff knew  when  he  filed  his  bill  for  a  spe- 
cific performance  of  the  contract,  that  the 
defendant  could  not  perform  it,  equity  will 
not  decree  damages  for  its  non-perform- 
ance, but  leave  the  plaintiff  to  his  remedy 
at  law :  McQueen  v.  Chouteau,  20  Misso. 
222;  Hatch  v.  Cobb,  4  Johns.  Ch.  560  j 
Doan  V.  Mauzey,  11  111.  227. 


64  OF  cnosES  in  action. 

sufficient  recompenso  ;  and  then  the  right  to  bring  an  action  at  law,  in  other 
•words  a  legal  chose  in  action,  constitutes  a  valuable  kind  of  personal 
property. 

The  infliction  of  a  wrong,  and  the  non-performance  of  a  contract,  are 
evidently  the  two  grand  sources  from  which  personal  actions  ought  to 
proceed.  If  one  man  commits  a  wrong  against  another,  justice  evidently 
requires  that  he  should  give  him  satisfaction ;  and  if  one  man  enters  into 
a  contract  with  another,  he  certainly  ought  to  keep  it,  or  make  reparation 
for  its  breach ;  or  if  the  contract  be  to  pay  a  sum  of  money,  the  money 
ought  to  be  duly  paid.  Personal  actions  are  accordingly  divided  by  the 
law  of  England  into  two  great  classes,  actions  ex  delicto,  and  actions  ex 
r^nr-\  ' contractu.{f)  The  *former  arises  in  respect  of  a  wrong  com- 
mitted, called  in  law  French  a  tort;  the  latter  in  respect  of  a 
contract  made  for  the  performance  of  some  action,  which  thus  becomes  a 
duty,  or  for  the  payment  of  some  money,  which  thus  becomes  a  debt. 
Let  us  consider,  in  the  present  chapter,  the  right  of  action  which  occurs 
ex  delicto,  or  in  respect  of  a  tort. 

The  ancient  law,  in  its  dread  of  litigation,  confined  the  remedy  by 
action  for  a  tort  or  wrong  committed,  to  the  joint  lives  of  the  injurer  and 
the  injured.  If  either  party  died,  the" right  of  action  was  at  an  end,  the 
maxim  being  actio  personalis  moritur  cum  persond.{g)  In  this  rule, 
actions  ex  delicto  only  were  included ;  of  which,  however,  there  seem  to 
have  been  more  than  any  other  in  early  times.  But,  by  an  early  stat- 
ute,(^)  the  same  action  was  given  to  the  executor  for  any  injury  done  to 
the  personal  estate  of  the  deceased  in  his  lifetime,  whereby  it  became 
less  beneficial  to  the  executor,  as  the  deceased  himself  might  have 
brought  in  his  lifetime.^     And  by  a  modern  statute,(i)  an  action  is  given 

(/)  3  Black.  Com.  117.  {g)  1  Wms.  Saund.  216  a,  n.  (1). 

(A)  Stat.  4  Edw.  III.  c.  7,  de  bonus  asportatis  in  vita  testatoris,  extended  to  executors 
by  Stat.  15  Edw.  III.  c.  5. 

(t)  Stat.  3  &  4  Will.  IV.  c.  42,  s.  2. 

'  The  provisions  of  the  statute  4th  Edw.  Kentucky:    Kennedy    et    al.    v.  McAfiel's 

III.,  c.  7,  if  not  the  statute  itself,  and  the  Exrx.,   1  Lit.   169;  Lynn's  Adnir.  v.  Lisk, 

judicial   interpretations   of  it,   have   been  9  B.  Monroe  135.     In  Maine  :  Hill,  Admr., 

adopted  in  almost  every  state  of  the  Union,  t;.     Penny,     17     Maine    410.      In     Mary- 

Under  this  enactment,  it  is  held,  that  an  land  :    Fister  v.    Beale's  Admrs.,    1    Har. 

action  of  tort  survives  to  the  representa-  k    Johns.    31  ;    Kenuerly,  Exrx.,   v.   Wil- 

tives  of  one  whose  personal  property  has  son,  1  Mary.  102.      In   Missouri  :    Higgins 

been   injured.     Thus  in  Alabama  :  Nettles  v.   Breen,    Admr,   9    Misso.    500;     Smith, 

V.  Barnett,    8    Porter  181;    Coker,  Admr.  Admr.,   v.  Grove,    12    Id.    52;    Kingsbury 

V.   Crozier,    5   Ala.   369;    16   Id.    698.     In  v.    Lane,    21    Id.    115.      In    New  Hamp- 


OF   ACTIONS    EX   DELICTO. 


65 


to  the  executors  or  administrators  of  any  person  deceased  for  any  injury 
to  the  real  estate  of  such  person,  committed  within  six  calendar  months 


sbire:  French,  Admr.,  v.  Merrill,  6  N.  H. 
465.  In  New  Jersey  :  Norcross  v.  Boul- 
ton,  1  Harrison  312;  Stewart  v.  Richey, 
2  Id  164.  In  New  York  :  Babcock  V.  Booth, 
2  Hill  184;  Snyder  et  al.,  E.xrs.,  v. 
Croy,  2  Johns.  227.  In  North  Carolina  : 
Arnold  v.  Exrx.  of  Lanier,  1  Carol.  L.  Reg. 
529  ;  McKinnis's  Exrs.,  v.  Oliphant's  Exrs., 
I  Hayw.  3.  In  Pennsylvania  :  Clarke  v 
McClelland,  9  Penn.  St.  128;  Kline  v. 
Guthart,  2  Penn.  St.  491  ;  Keito,  Admr.,  v. 
Boyd,  16  S.  &  R.  300;  Nicholson  et 
al.,  Exrs.,  v.  Elton,  Admr.,  13  Id.  41.5; 
Reist,  Admr.,  v.  Heibbrenner,  11  Id.  131  ; 
Kater  v.  Steinruck,  40  Penn.  St.  501. 
In  Massachusetts  :  Pitts  v.  Hale,  3  Mass. 
321  ;  Jenney  v.  Jenney,  14  Id.  232  ;  Mellen 
et  al.  V.  Baldwin,  4  Id.  480  ;  Towle,  Admrx., 
V.  Lovet,  6  Id.  394.  In  Georgia  :  Robin- 
son V.  McDonald,  2  Kelly  120.  So  in 
Connecticut:     Kirby,     Admr.,     v.    Clark, 

I  Root  389.  So  in  South  Carolina, 
Exrs.  of  Middleton  v.  Robinson,  1  Bay 
58.  So  in  Tennessee  :  Douglass  v.  Mor- 
ford,  7  Yerg.  84;  Cheep  v.  Wheatley,  11 
Humph.  557.  In  Vermont:  Hall,  Admr., 
V.  Walbridge,  2  Aiken  215;  Manwell, 
Admrx.,  v.  Briggs,  17  Vt.  181  ;  Admr. 
of  Barrett  v.  Copeland,  20  Id.  247  ;  Dana, 
Admr.,  v.  Lull,  21  Id.  389;  Bellows  v. 
Admr.  of  Allen,  22  Id.  108.  In  Illinois: 
Read    v.   Peoria    &    Oquawka  R.  R.    Co., 

II  111.  403.  In  California:  Halleck  v. 
Mixer,  16  Cal.  574.  In  Delaware  :  Wa- 
ples  V.  Mcllvaine,  5  Harring.  381.  And 
in  Virginia :  Morris,  Admr.,  v.  Dawney 
et  al.,  Admrs.,  3  Hen.  &  Munf.  127  ; 
Vaughan's  Admr.  v.  Winklee's  Exr.,  4, 
Munf.  136.  This  principle  has  also 
been  sanctioned  by  the  Supreme  Court  of 
the  United  States:  U.  S.  v.  Daniel  et  al. 
6  How.  13  ;  and  see  also.  Hatch  v.  Eus- 
tice,  1  Gall.  C.  C.  160.  In  Ohio,  it  has 
been  decided,  that  the  representatives  of 
a  decedent  can  only  maintain  such  action 
as  their  testator  or  intestate  might,  if  liv- 
ing :  Benjamin  v.  Le  Baron's  Admr.,  15  Ohio 
526;    Jones    v.    Vanzandt,    4    McL.     599, 


In  Connecticut,  it  has  been  held,  that 
an  action  for  false  warranty,  is  founded  on 
the  contract  of  warranty,  and  is  therefore 
not  abated  by  the  death  of  the  plaintiff 
during  its  pendency,  although  in  form  an 
action  of  tort :  Booth  v.  Northrop,  27  Conn. 
325. 

In  many  of  the  States,  it  is  also  held, 
that  an  action  for  a  tort  may  be  maintained 
against  the  representatives  of  the  wrong- 
doer, for  an  injury  done  to  personal  pro- 
perty ;  where  this  rule  prevails,  it  depends 
for  the  most  part  on  the  acts  of  the  legis- 
latures of  the  states.  Even  where  this 
doctrine  is  denied,  if  the  property  of  the 
decedent  has  been  benefited  by  the  wrong- 
ful act,  some  other  remedy  may  be  had,  to 
recover  the  amount  by  which  the  estate 
has  been  benefited  ;  or,  the  specific  thing, 
or  its  value,  which  the  estate  has  gained. 

The  courts  of  Kentucky,  Maryland,  Mis- 
souri, New  Jersey,  and  North  Carolina, 
have  decided,  that  tort  for  an  injury  to 
personal  property,  will  survive  against  the 
representatives  of  the  wrongdoer :  Ken- 
nedy et  al.  V.  McAfiel's  Exrx.,  1  Lit. 
169  ;  Lynn's  Admr.  v.  Sisk,  9  B.  Monroe 
135 ;  Brummett  v.  Golden  et  al.  Admrs., 
9  Gill  95 ;  Higgins  v.  Breen,  Admr.,  9 
Mo.  500 ;  Jewett  v.  Weaver,  Admr ,  10 
Id.  234;  Mount  v.  Exrs.  of  Cubberly,  4 
Harrison  (N.  J.)  124;  Tahume  v.  Exrs. 
of  Bray,  1  Id.  53 ;  Arnold  v.  Exrx.  of  Lanier, 
1  Caro.  L.  Reg.  529 ;  Helme  v.  Sanders, 
3  Hawk.  565 ;  Cutler  et  al.  v.  Brown's 
Exrs.  2  Hayw.  182 ;  Spivey  v.  Farmer's 
Admr.,  Id.  339;  McKinnis's  Exrs.  v.  Oli- 
phant's Exrs.,  1  Id.  3  ;  Decrow  v.  Monis's 
Exrs.,  Id.  21 ;  Clark  v.  Keenan  et  al.,  Id. 
308  ;  Avery  v.  Moore's  Exrs.,  Id.  362.  So 
also,  it  seems,  in  Virginia:  Vaughan's 
Admr.  v.  Winkler's  Exr.,  4  Munf.  136. 
In  Georgia,  an  action  of  deceit  may  bo 
brought  against  an  administrator  for  the 
fraud  of  his  intestate:  Admr.  of  Gruse  v. 
Bryant,  2  Kelly  66.  But  see  Irwin  v. 
Sterling,  27  Geo.  5G3 ;  Glisson  v.  Car- 
ter, 28  Id.  516.     By  the  law  of  New  York, 


65 


OF    CnOSES    IN   ACTION. 


befoi'e  his  death,  for  which  an  action  might  have  been  maintained  by 
him ;  so  that  the  action  be  brought  within  one  year  after  the  death  of 
such  person  ;  and  the  damages,  when  recovered,  are  to  be  part  of  the 
personal  estate  of  such  person.^     And  by  a  later  statute,(A;)  it  is  pro- 

(k)  Stat.  9  &  10  Vict.  c.  93,  amended  by  stat.  27  &  28  Vict.  c.  95.     See  Pym  v.  The 
Great  Northern  Railway  Company,  2  B.  &  S.  759  (E.  C.  L.  R.  vol.  110). 


though  an  action  of  tort  may  be  brought, 
yet  it  can  only  be  in  those  cases,  where 
the  estate  of  the  wrongdoer  is  increased 
or  benefited  by  his  trespass :  Troup  v. 
Exrs.  of  Smith,  20  Johns.  23  ;  The  Peo- 
ple V.  Gibbs  et  al.,  Exrs.,  9  Wend.  29  ; 
2  Kt.  Com.  416.  The  law  of  Pennsylvania 
is  somewhat  singular ;  while  an  action  of 
replevin  may  be  maintained  against  the 
representatives  of  a  decedent :  Harlan  v. 
Harlan,  17  Penn.  S,t.  513;  Keito,  Admr. 
V.  Boyd,  10  S.  &  R.  300;  Sharick  v. 
Huber,  6  Binn.  3  ;  Weaver  v.  Lawrence, 
1  Dal.  R.  157,  and  also  an  action  on  the 
case  for  deceit :  Boyd's  Exrs.  v.  Browne, 
6  Penn.  St.  311  ;  and,  an  action  for 
neglect,  begun  against  an  attorney  in  his 
lifetime,  has  been  held  to  survive  against 
his  representative:  Miller  v.  Wilson,  24 
Penn.  St.  122 ;  an  action  of  trover,  or 
trespass  vi  et  armis,  cannot  be  brought : 
Heuch  et  ux.,  Admrs.  v.  Metzer  et 
al.,  Exrs.,  6  S.  &  R.  272  ;  Keito,  Admr. 
V.  Boyd,  16  Id.  300;  Lattimore  et  al. 
Exrs.  V.  Simmons,  13  Id.  184;  Nichol- 
son et  al.  Exrs.  v.  Elton,  Admr.  13  Id.  415. 
In  Arkansas,  an  action  of  replevin,  begun 
against  one  who  dies,  will  survive  by 
statute,  against  one  who  might  originally 
be  prosecuted  for  the  same  cause  of  action. 
Dixon  V.  Thatcher's  Heirs,  3  Eng.  137. 

In  almost  all  of  those  States  in  which  an 
action  of  tort  will  not  lie  against  the  exe- 
cutor or  administrator,  of  a  testator  or 
intestate,  who  has  committed  some  injury 
to  personal  property,  some  other  remedy 
is  available  to  the  injured  party,  if  the 
estate  of  the  wrongdoer  has  been  be<>efited 
by  his  wrong.  Thus  in  Alabama:  Nettles 
V.  Barnett,  8  Porter  181 ;  Coker,  Admr. 
u.  Crozier,  5  Ala.  369;  16  Id.  398.  So 
in  Massachusetts  :  Cravarth  v.  Plympton, 
Admr.,    13   Mass.  394;    Jarvis,   Admr.   v. 


Roger,  15  Id.  398 ;  Pitts  v.  Hale,  3  Id.  321  ; 
Jenney  v.  Jenney,  14  Id.  232  ;  Barnard  v. 
Harrington,  3  Id.  228  ;  Badlam,  Exr.  v. 
Tucker,  1  Pick.  284;  Perry  v.  Wilson, 
7  Mass.  395 ;  Mellen  et  al.  v.  Baldwin,  4 
Id.  480.  So  also  in  South  Carolina  :  Exrs. 
of  Middleton  v.  Robinson,  1  Bay  58.  In 
Tennessee,  by  the  Act  of  1835-6,  c.  77, 
all  actions,  except  for  wrongs  affecting  the 
person  or  character  of  the  plaintiff,  com- 
menced by  or  against  a  deceased  person 
in  his  lifetime,  may  be  revived  by  or 
against  his  representatives  ;  and  even  be- 
fore that  statute,  the  law  would  give  a 
remedy  for  injury  to  personal  property, 
though  an  action  of  tort,  technically 
speaking,  might  not  survive :  Norment 
V.  Smith,  1  Humph.  46 ;  Jones  v.  Little- 
field,  3  Yerg.  144;  Cocke  v.  Trotter,  10 
Id.  213.  In  Maine  it  has  been  held,  that 
upon  the  death  of  the  defendant  in  re- 
plevin, the  suit  abates,  the  administrator 
not  being  authorized  to  come  in  and  de- 
fend :  Merrit  v.  Lumbert,  8  Greenl.  128. 
In  Indiana,  although  an  action  of  waste 
cannot  be  brought  by  an  administrator  de 
bonis  non,  against  the  administrator  of  the 
original  administrator,  yet  it  may  be  main- 
tained by  the  creditors  of  the  original 
intestate :  Ferguson  et  al.  v.  Sweeney,  6 
Black.  547 ;  Lewis,  Admr.,  v.  Houston, 
7  Id.  335;  Young  v.  Kimball,  8  Id.  167.  In 
Mississippi  and  Louisiana,  actions  com- 
menced do  not  abate  by  the  death  of  either 
party :  Torry  et.  al.  v.  Robinsoa,  2  Cush. 
(Miss.)  193;  Purtevant  v.  Pendleton's 
Admr.,  1  Id.  41;  I  La.  Ill;  6  Id.  301; 
11  Id.  357  ;  6  Robinson  44 ;  1  Id.  522. 

1  Whether  an  action  of  tort  can  be  main- 
tained by  the  representatives  of  a  decedent, 
for  an  injury  done  to  his  real  property  ;  as 
also  whether  the  representatives  of  a  tres- 
passer upon  real  property,  can  be  made 


OF   ACTIONS    EX   DELICTO. 


65 


vided,  that  whenever  the  death  of  a  person  shall  he  caused  hy  such 
wrongful  act,  neglect  or  default,  as  would  (if  death  had  not  ensued) 
*have  entitled  the  party  injured  to  maintain  an  action  and  re-  r:^^.^-, 
cover  damages  in  respect  thereof,  the  wrongdoer  shall  he  liahlc  -" 

to  an  action  for  damages,  notwithstanding  the  death  of  the  person 
injured,  and  although  the  death  shall  have  been  caused  under  such  cir- 
cumstances as  amount  in  law  to  felony.  Under  this  act,  one  action  only 
can  lie  for  the  same  subject-matter  of  complaint;  and  such  action  must 
•be  commenced  within  twelve  calendar  months  after  the  death  of  the 
deceased,(Z)  in  the  name  of  his  executor  or  administrator,(wj)  and  must 


{I)  Stat.  9  &  10  Vict.  c.  93,  s.  3. 


(m)  Sect,  2. 


defendants  in  a  suit  brought  to  recover 
damages  for  such  an  injury,  has  not  been 
so  generally  decided  by  the  courts  of  the 
several  States,  as  the  inquiries  concerning 
the  surviving  of  actions  for  injuries  to 
personal  property. 

The  former  question  has  been  decided 
in  the  affirmative  by  the  courts  of  Mary- 
land, Massachusetts,  Vermont,  Connecti- 
cut, South  Carolina,  Tennessee  and  Mis- 
sissippi :  Kennerly,  Exrx.,  v.  Wilson,  1 
Md.  102;  Wilbur,  Exr.,  v.  Gilmore,  21 
Pick.  250  :  Boynton  et  al.  v.  Rees,  9  Id. 
528 ;  Goodridge  v.  Rodgers,  Admr.,  22 
Id.  495  ;  Stanley,  Admr.,  v.  Gaylord,  10 
Mete.  82 ;  Northampton  Paper  Mills  v. 
Ames  et  al.,  6  Id.  422;  Griswold,  Admr., 
V.  Brown  et  al.,  1  Day  180 ;  Bellow's  Admr. 
V.  Allen,  22  Vt.  108 ;  Admr.  of  Barrett  v. 
Copeland,  20  Id.  247;  Chalk  v.  McAlly,  10 
Rich.  92;  Winters  v.  McGhee,  3  Sneed 
128 ;  N.  0.,  &c.,  R.  R.  Co.  v.  Moye,  39  Miss. 
374.  The  authority  of  Maine,  California, 
Illinois,  and  perhaps  of  Virginia,  is  in  the 
negative:  Hill,  Admr.,  r.  Penny,  17  Maine 
410;  O'Conner  v.  Corbit,  3  Cal.  370;  Read 
V.  Peoria  &  Oquawka  R.  R.  Co.,  18  111. 
403 ;  Harris  v.  Crenshaw,  3  Rand.  14 ; 
though  in  the  latter  State  it  has  been  held 
that  on  the  death  of  a  plaintiff,  in  pro- 
ceedings to  recover  damages  to  land, 
caused  by  the  erection  of  a  dam,  under  a 
statute,  the  proceedings  may  be  revived 
by  the  administrator,  Upper  Appomattox 
Co.  V.  Ilardings,  11  Gratt.  1;  and  as  to 
6 


the  law  of  California,  see  Haight  v.  Green, 
19  Cal.  113. 

In  Pennsylvania,  the  authorities  are 
conflicting:  Keito,  Admr.,  v.  Boyd,  16 
S.  &  R.  300,  giving  an  action  to  the 
representatives  of  a  decedent  for  a 
trespass  de  bonis  asportatis,  and  Lattimore 
et  al.,  Exrs.,  v.  Simmons,  13  S.  &  R. 
184,  deciding  that  no  action  will  survive 
to  the  representatives  for  an  injury  to  the 
freehold. 

That  tort  for  injuries  to  real  property, 
will  survive  against  the  representatives  of 
the  wrongdoer,  has  been  held  in  Kentucky  : 
Kenney  et  al.  v.  McAfiel's  Exrx.,  1  Lit. 
169.  So  also,  perhaps,  in  North  Carolina 
and  Vermont :  Dobbs  v.  Gullidge,  3  &  4 
Dev.  &  Bat.  68 ;  McPherson  v.  Leguire, 
3  Dev.  153;  Arnold  v.  Exrx.  of  Lanier, 
1  Caro.  L.  Reg.  529;  Burgess  v.  Gates, 
Exrx.,  20  Vt.  326.  In  New  York  and 
New  Jersey  this  action  may  also  be  main- 
tained, provided  a  benefit  has  accrued  to 
the  estate  of  the  wrongdoer:  2  Kent  Com. 
416;  Cooper  v.  Crane,  4  Halst.  177; 
but  it  has  been  held  in  New  York,  that 
trespass  for  mesne  profits  will  not  survive 
against  the  wrongdoer's  personal  repre- 
sentative :  Campbell  v.  Renwick,  2  Bradf. 
80.  In  Texas,  the  administration  of  the 
whole  estate,  both  real  and  personal,  is 
by  law  cast  upon  the  administrator,  who 
can  therefore  bring  and  maintain  suits  for 
lands  belonging  to  his  intestate:  Graham 
V.  Vining,  Admr.,  2  Texas  433, 


66  OF    CIIOSES    IN    ACTION. 

be  for  the  benefit  of  the  wife,  husband,  parents,  grandfather  and  grand- 
mother, stepfather  and  stepmother,  cliihh-en,  grandchiklren  and  step- 
children of  the  deceased,  in  such  shares  as  the  jury  shall  direct.(w)  And 
if  there  shall  be  no  executor  or  administrator  of  the  person  deceased,  or, 
there  being  such  executor  or  administrator,  no  action  shall  have  been 
brout^ht  in  his  name  within  six  calendar  months  from  the  death  of  the 
deceased,  then  such  action  may  be  brought  by  and  in  the  name  or  names 
of  all  or  any  of  the  persons  (if  more  than  one)  for  whose  benefit  such 
action  would  have  been,  if  it  had  been  brought  by  or  in  the  name  of  such- 
executor  or  administrator.(o)  Previously  to  this  statute,  a  man  who  had 
been  maimed  by  another  could  recover  compensation  for  the  injury ;  but 
if  he  died  of  his  wound,  his  family  could  obtain  no  recompense  for  the 
r*fi7-i  the  loss  of  a  *life  which  might  have  been  their  only  dependence.^ 
^  -"  And  even  now,  when  the  death  of  a  person  is  not  caused^  no 
action  can  be  brought  by  bis  executor  or  administrator  for  any  injury 
which  affected  him  personally,  if  it  did  not  touch  his  property.  Thus  it 
has  been  held,  that  an  executor  or  administrator  cannot  have  an  action 

(n)  Sects.  2,  5.  This  act  is  a  specimen  of  the  common  absurdity  of  modern  acts  of 
parliament,  in  introducing  an  interpretation  clause  in  one  section  just  to  vary  the 
meaning  of  another.  It  enacts  in  one  section  that  the  action  shall  be  for  the  benefit 
of  the  wife,  husband,  parent  and  child  ;  and  in  another  section  that  the  word  "  parent" 
shall  include  father  and  mother,  and  grandfather  and  grandmother,  and  stepfather  and 
stepmother ;  and  the  word  "  child"  shall  include  son  and  daughter,  and  grand- 
son and  granddaughter,  and  stepson  and  stepdaughter.  Now  the  words  "  parent"  and 
"child"  occur  only  in  the  one  place  just  mentioned  besides  this  interpretation  clause. 
Why  not  therefore  say  at  once  what  is  really  intended? 

(o)  Stat.  27  &  28  Vict.  c.  95,  s.  1. 


1  An  Act  of  the  Legislature  of  Pennsyl-  widow  of  any  such  deceased,  or  if  there 
vania,  of  the  15th  April.  1851,  provides,  be  no  widow,  the  personal  representatives 
that  no  action  for  injuries  to  the  person,  may  maintain  an  action  and  recover  dam- 
happening  through  negligence,  default,  or  ages  for  the  death  thus  occasioned." 
violence,  shall  abate  by  the  death  of  the  Purd.  Dig.  (1861)  286. 
plaintiff;  the  words  of  the  act  are:  "No  A  statute  of  Massachusetts  (1842,  c.  89, 
action  hereafter  brought,  to  recover  dam-  §  1),  is  somewhat  similar,  providing  that 
ages  for  injuries  to  the  person,  by  negli-  actions  on  the  case  for  damages  to  the 
gence  or  default,  shall  abate  by  reason  of  person,  shall  survive;  but  the  courts  of 
the  death  of  the  plaintiff;  but  the  personal  that  State  have  decided,  that  the  personal 
representatives  of  the  deceased  may  be  damages  mentioned  in  this  statute,  mean 
substituted  as  plaintiff,  and  prosecute  the  only  physical  injuries  :  Smith  v.  Sherman, 
suit  to  final  judgment  and  satisfaction."  4  Cush.  408  :    Walters  v.  Nettleton,  5   Id. 

"Whenever  death  shall  be  occasioned  544;    Nettleton    v.    Dinehart,    5    Id.    543. 

by  unlawful  violence  or  negligence,  and  Laws  of  a  like  character  are  also  existing 

no  suit  for   damages  be   brought  by  the  in  other  of  the  States,  most  of  them  being 

party  injured  during   his   or  her  life,  the  comparatively  recent  enactments. 


OF   ACTIONS    EX   DELICTO.  67 

for  a  breach  of  promise  of  marriage  with  the  deceased,  where  no  special 
damage  can  be  stated  to  have  accrued  to  her  personal  estate.(j9) 

Not  only  the  death  of  the  injured  party,  but  also  that  of  the  wrong- 
doer, formerly  put  an  end  to  every  action  which  arose  from  a  tort  or 
wrong ;  and  this  was  the  case  up  to  a  very  recent  period ;  although  if 
the  executor  or  administrator  had  profited  by  the  wrong  done,  the  in- 
jured party  was  able  to  recover  from  him  the  money  or  goods  he  had 
thus  gained.(9y  But  by  a  modern  statute(r)  an  action  may  now  be  main- 
tained against  the  executors  or  administrators  of  any  person  deceased 
for  any  wrong  committed  by  him  within  six  calendar  months  before  his 
death  against  another  person,  in  respect  of  his  property  real  or  personal; 
so  as  such  action  be  brought  within  six  calendar  months  after  such  exe- 
cutors or  administrators  shall  have  taken  upon  themselves  the  adminis- 
tration of  the  estate  and  effects  of  such  person.^  And  the  damao-es  to  be 
recovered  in  such  action  are  to  be  payable  in  the  like  order  of  adminis- 
tration as  the  simple  contract  delbts  of  such  person.  The  remedy  afforded 
by  this  statute  does  not  preclude  such  action  as  might  have  previously 
been  brought  against  the  executor  or  administrator.(s) 

There  is  one  peculiar  action  founded  on  tort,  to  which,  from  the  nature 
of  thg  case,  the  deceased  himself  cannot  *be  liable,  but  which  is  ri^ocn 
maintainable  by  the  common  law  against  his  executors  or  adminis- 
trators.  This  is  the  action  for  dilapidations  of  the  houses  or  buildings  on 
a  benefice ;  and  it  is  brought  by  the  new  incumbent,  whether  of  a  rectory, 
vicarage  or  perpetual  curacy,(i)  against  the  executors  or  administrators 
of  his  predecessor.  This  action  cannot  be  said  to  be  an  exception  to  the 
rule  actio  personalis  moritur  cum  persona,  for  the  deceased  is  not  liable 
during  his  lifetime;  the  plaintiff  must  be  the  succeeding  incumbent;  and 
an  action  cannot  be  said  to  die  which  never  had  or  could  have  any  exist- 
ence, (w)  However,  in  the  case  of  resignation  or  exchange,  the  preceding, 
incumbent  is  himself  liable  for  dilapidations. (y)  In  estimating  the  damages 
to  be  recovered  in  this  action,  the  rule  is  as  follows  : — The  incumbent  is 
bound  to  maintain  the  parsonage,  farm  buildings,  and  chancel  in  good 
and  substantial  repair,  restoring  and  rebuilding  when  necessary,  according 

{p)  Chamberlain  v.  Williamson,  2  M.  &  Selw.  408,  415. 

[q)  Powell  t^.  Rees,  7  Ad.  &  E.  426  (E.  C.  L.  R.  vol   34). 

(r)   Stat.  3  &  4  Will.  IV.  c.  42,  s.  2.  (s)  Powell  v.  Rees,  ubi  supra. 

{t)  Mason  v.  Lambert,  12  Q.  B.  795  (E.  C.  L.  R.  vol.  64). 

(m)  Sollers  v.  Lawrence,  Willes  421.  (r)  Downes  v.  Craig,  9  M.  &  W.  16G. 

1  See  ante,  p.  65,  note.  *  Ibid. 


(38  OF  cnosES  in  action. 

to  the  ori-'inal  form,  Tvithout  addition  or  modern  improvement;  and  he 
is  not  boinid  to  supply  or  maintain  anything  in  the  nature  of  ornament 
to  which  painting  (unless  necessary  to  preserve  exposed  timbers  from 
decay)  and  ^vhite^vashing  and  papering  belong.(2:)  And  no  damages  can 
be  recovered  on  account  of  neglect  to  cultivate  the  glebe  lands  in  a  hus- 
bandlike mannev.il/)  If  the  incumbent  commit  any  act  of  waste,  such  as 
could  not  be  committed  by  any  ordinary  tenant  for  life,(2;)  he  may  be 
restrained  by  an  injunction  out  of  the  Court  of  Chancery  ;(ay  but  it  has 
recently  been  decided  that  his  executors  will  not  be  liable  in  an  action 
for  dilapidations  for  waste  committed  *by  him  in  digging  gravel  in 
t**-*^^  pits  which  were  opened  by  his  predecessor.(6)  Whether  they 
would  be  liable  if  the  incumbent  himself  opened  the  pits  appears  doubt- 
ful.(c)  Claims  for  dilapidations  have  this  peculiarity,  that  they  are  not 
to  be  satisfied  by  the  executor  until  after  payment  of  all  the  debts  of  the 
testator,  including  those  merely  by  simple  contract.((^) 

(x)  Wise  V.  Metcalf,  10  B.  &  C.  299  (E.  C.  L.  R.  vol.  21). 

{y)  Bird  v.  Ralph,  4  B.  &  Ad.  826  (E.  C.  L.  R.  vol.  24). 

(2)  See  Principles  of  the  Law  of  Real  Property,  p.  23,  4th,  5th,  6th,  Vth  &  8th  eds. 

(a)  The  Duke  of  Marlborough,  v.  St.  John,  5  De  G.  &  Sm.  IH. 

(6)  Ross  V.  Adcock,  Law  Rep.  3  C.  P.  655. 

(c)  See  Huntley  v.  Russell,  13  Q.  B.  572  (E.  C.  L.  R.  yoI.  66) ;  Ross  v.  Adcock,  ubi 

supra. 

(d)  Bryan  v   Clay,  1  E.  &  B.  38  (E.  C.  L.  R.  vol.  12).     But  as  to  equitable  assets,  see 

Bissett  V.  Burgess,  23  Beav.  278. 


1  By  the  laws  of  Pennsylvania,  a  writ  of  personal  estate  of  said  decedent  is  not  suf- 

estrepement,  to  stay  waste,  may  be  issued  ficient  to  pay  his  debts,  and  that  the  per- 

on    the   application  of    a   remainderman  son  in  possession  of  the  freehold  has  com- 

against  a  tenant  for  life  ;  and  also  at  the  mitted  waste,  or  allowed  it  to  be  done  by 

suit  of  a  creditor,  against  the   tenant,  or  others:  Purd.  Dig.  (1861),  p.   1008,  sees, 

person  in  possession  of  a  decedent  debtor's  5&7;  Act  of  April  10,  1848,  seel;  Act 

real  estate,  upon  the  allegation  that  the  of  April  22,  1850,  sec.  1. 


♦CHAPTER  11.  [*70] 

OF     CONTRACTS. 

Personal  actions,  we  have  observed,(a)  may  be  brought  not  only  on 
account  of  the  infliction  of  a  wrong,  but  also  to  recover  pecuniary 
damages  for  the  non-performance  of  a  contract,  or  to  procure  the  pay- 
ment of  money  due,  if  the  payment  of  a  specific  sum  be  the  subject  of 
the  contract.  As  the  payment  of  money  is  the  law's  ultimate  remedy  in 
personal  actions,  an  action  for  a  given  debt  will  be  effectually  satisfied  by 
a  judgment  that  the  plaintiff  do  recover  his  debt ;  and  this  is  the  judg- 
ment accordingly  given  in  an  action  of  debt,  which  lies  for  the  recovery 
of  a  specific  sum  due  from  the  defendant  to  the  plaintiff. (6)  But  when 
no  specific  sum  is  claimed,  the  action  can  only,  in  the  law  phrase,  sound 
in  damages  ;  and  the  amount  of  the  damages  to  be  recovered  must,  until 
recently,  have  been  assessed  by  a  jury  according  to  the  injury  sustained. (c) 
But  the  Common  Law  Procedure  Act,  1852,  now  provides,  that,  in  actions 
in  which  it  shall  appear  to  the  court  or  a  judge  that  the  amount  of 
damages  sought  to  be  recovered  by  the  plaintiff  is  substantially  a  matter 
of  calculation,  the  court  or  a  judge  may  direct  that  the  amount  for 
which  final  judgment  is  to  be  signed  shall  be  ascertained  by  one  of  the 
masters  of  the  court  'j{df  and  further,  that,  in  all  actions  where  the 
plaintiff  recovers  a  sum  of  money,  the  amount  to  which  he  is  entitled  may 
be  awarded  to  him  by  the  judgment  generally,  without  any  distinction 
being  therein  made  as  to  whether  such  sum  is  recovered  by  way  of  a 
*debt  or  damages. (e)  It  is,  however,  competent  to  the  parties  to  r*7-|-i 
a  contract  to  agree  between  themselves,  that,  in  the  event  of  a 
breach  by  either  party,  a  given  sum  shall  be  recovered  from  him  by  the 
other  as  stipulated  or  liquidated  damages ;  and  in  this  case  the  whole  of 
the  sum  thus  agreed  on  may,  on  a  breach  of  the  contract,  be  recovered 

(a)  Ante^  p.  4.  (6)  Stephen  on  Pleading  116. 

(c)  Ibid.  p.  117.  •  {d)  Stat.  15  &  16  Vict.  c.  76,  s.  94. 

(e)  Ibid. 


^  A  rule  of  court  somewhat  resembling  judgment  by  default  in  actions  upon  note, 

this,  has   been   adopted  by  the   Supreme  bill,    or  book    account ;  and   in   all  cases 

Court  of  the  Commonwealth  of  Pennsyl-  founded    on    contract    and    sounding    in 

vania,  whereby  the  prothonotary  is  autho-  damages,   where   the   defendant  does    not 

rized  to  assess   the   damages,   in   case   of  object. 


71  OK    CHOSES    IN    ACTION. 

from  the  (lcfaultcr.(/)  The  sum  so  agreed  on  is  not  properly  called  a 
poiiulty;  f.^r.  as  we  shall  see  hereafter  when  speaking  of  bonds,  the  law 
regardVa  penalty  as  a  seeurity  only  for  the  damage  actually  sustained; 
although  the  use  of  thr  word  penalty  will  not  prevent  the  whole  sum 
from  hting  recovered,  if  this  be  clearly  the  intention.f^r)  But  where  a 
sum  of  umuey  is  stipulated  to  be  recovered  as  liquidated  damages  in 
case  of  the  breach  of  an  agreement  to  do  several  acts,  and  such  sum  will, 
in  ca«e  of  breaches  of  the  agreement,  be  in  some  instances  too  large  and 
in  others  too  small  a  compensation  for  the  injury  occasioned,  such  sum 
will  not  be  allowed  to  be  recovered  in  case  of  any  breach,  but  damages 
onlv.  proportioned  to  the  actual  injury  which  the  breach  has  occasion ed.(7t) 
In  such  a  case,  if  the  parties  wish  to  bind  themselves  to  pay  liquidated 
damages,  they  must  contract  in  clear  and  express  terms,  that  for  the 
breach  of  each  and  every  stipulation  contained  in  the  agreement  a  sum 
certain  is  to  be  paid  ;  and  in  that  case,  although  the  stipulations  may  be 
of  various  degrees  of  importance,  the  parties  will  be  held  to  their  con- 
tract.(/)' 

(  f)  Rcilly  r.  Jonc«>,  1  Rinfr.  302  (E.  C.  L.  R.  vol.  8);  s.  c.  8  Moore  244;  Sugd.  Vend. 
k  Pur.  221,  11th  ed. ;  Leighton  v.  Wales,  2  M.  &  W.  545;  Prfce  v.  Green,  16  M.  & 
W.  346,  354  ;  Galesworthy  v.  Strutt,  1  l5.xch.  Rep.  659 ;  Atkyns  v.  Kinnier,  4  Exch.  Rep. 
776. 

{g)  Sainter  i'.  Ferguson,  7  C.  B.  716  (E.  C.  L.  R.  vol.  62)  ;  Sparrow  v.  Paris,  7  H.  & 
N.  594. 

(A)  Kemble  r.  Farren,  6  Ring.  141  (E.  C.  L.  R.  vol.  19);  s.  c.  3  M.  &  P.  425; 
D»Ties  V.  Penton,  6  B.  &  C.  216,  223  (E.  C.  L.  R.  vol.  13)  ,  s.  c.  9  Dowl.  &  Ry. 
369  ;  Horner  v.  Flintoff,  9  M.  &  W.  678,  081  ;  Reiadel  v.  Schell,  4  Scott  N.  S.  97  ; 
Belts  V.  Burch,  4  H.  &  N.  500. 

(i)  Per  Parke,  B.,  9  M.  &  W.  680.  See  Atkins  r.  Kinnier,  4  Exch.  Rep.  776  ; 
Mercer  r.  Irving,  1  E,  B.  &  E.  563  (E.  C.  L.  R.  vol.  96). 

>  In  interpreting  a  contract,  which  pro-  inquiry,  What  is  the  intention  of  the  parties 
Tides,  tliat  upon  its  non-fulfilment,  a  sum  to  the  contract?  and  this  question  must  be 
agreed  upon  shall  be  paid  by  the  default-  answered  by  taking  a  comprehensive  view 
ing  party,  it  is  often  a  matter  of  great  of  the  whole  contract,  and  not  by  confin- 
difficulty,  to  determine  whether  the  sura  ing  the  examination  to  any  isolated  word  or 
90  specified  to  be  paid,  is  a  penalty,  or  sentence :  Watt's  Exrs.  v.  Sheppard,  2 
liquidated  damages.  This  difficulty  is  not  Ala.  425;  Carpenter  et  al.  v.  Lockhart,  1 
les.oened,  by  the  fact,  that  tlie  use  of  the  Carter  (Ind  )  435  ;  Heard  v.  Bowers  et  al. 
words  "penalty  "  or '-liquidated  damages,"  23  Pick.  455;  Shute  v.  Taylor,  5  Mete.  51; 
•ffords  no  sufficient  aicl  in  arriving  at  a  Brown  v.  Bellows,  4  Pick.  179;  Beale  v. 
conclusion ;  it  having  been  frequently  dc-  Hayes,  5  Saudf.  S.  C.  641  ;  Hosmer  v. 
cided,  where  the  parties  have  called  the  True,  19  Barb.  106  ;  Foley  v.  McCeegan, 
specific  sum  "  liquidated  damages,"  it  is,  4  Iowa  1 ;  Streeper  v.  Williams,  48  Penn. 
nevertheless,  a  penalty,"  and  vice  versa;  St.  450;  Shreeve  v.  Brereton,  51  Id. 
the  only  safe  rule  of  interpretation,  in  this  175.  The  tendency,  however,  of  the  de- 
country  as  in  England,  is  based  upon  the  cisions  of  the  courts,  is  towards  determin- 


OF   CONTRACTS. 


72 


*So  much  tlicn  for  the  legal  remedies  for  a  breach  of  contract,    r+79-1 
Let  us  now  inquire  more  particularly  of  Avhat  a  contract  itself 


ing  the  sura  specified  in  the  contract,  to 
be  a  penalty :  Shute  v.  Taylor,  5  Mete. 
51 ;  Moore  et  al.  v.  Platte  Co.,  8  Mo. 
467;  Cheddick's  Exr.  v.  Marsh,  1  Zab. 
463;  Wallis  v.  Carpenter,  13  Allen  19; 
Tayloe  v.  Sandiford,  7  Wheat.  13;  and 
consequently,  where  the  word  "  penalty  " 
is  used,  it  must  clearly  appear  that 
the  parties  intend  it  should  be  liquidated 
damages,  or  it  will  be  interpreted  to  be  a 
penalty. 

In  2d  Greenleaf  s  Evidence,  |g  258,  259, 
certain  rules  will  be  found  to  ascertain  the 
intention  of  the  parties  to  a  contract,  as  to 
this  point. 

Thus  it  has  been  held  to  be  a  penalty. 
First,  "  Where  the  parties  in  the  agree- 
ment have  expressly  declared  the  sum  to  be 
intended  as  a  forfeiture,  or  penalty,  and 
no  other  intent  is  to  be  collected  from 
the  instrument:"  Stearns  v.  Barrett,  1 
Pick.  443;  Brown  v.  Bellows,  4  Id.  179; 
Abrams  v.  Kounts  et  al.,  4  Ohio  214; 
Robeson  et  al.,  Exrs.,  v.  Whitesides,  16  S. 
&  R.  320  ;  Tayloe  v.  Sandiford,  7  Wheat.  13, 

Second.  "  Where  it  is  doubtful,  whether 
it  was  intended  as  a  penalty,  or  not ;  and 
a  certain  damage,  or   debt,  less  than  the 
penalty,  is  made  payable,  on   the  face   of 
the  instrument :"  Dakin  et  al.  1;.  Williams 
et  al.,    17  Wend.  447:   s.   c.    22  Id.   201; 
Baird  w.  Tolliver  et  al.,    6   Humph.    186; 
Waller    v.    Long,    6    Munf.    71;    Watt's 
Exrs.    V.   Sheppard,   2  Ala.  425  ;    Number 
of  cases,  Ala.  209  ;   Plummer  v.  McKean, 
2  Stew.  (Ala.)  423;  Hamilton  v.  Overton 
et  al.,  6   Blackf.   266  ;  Taul  v.   Everett,   4 
J.    J.  Marsh.    10 ;   Churchwardens    et   al., 
V.   Peytavin,  2  Condens.  R.  S.  C.  La.  493 
Reynolds     v.    Yarborough,     7     La.     193 
Baxter  et  al.,   Exrs.,   v.  Wales,  12   Mass 
365;     Beale    v.    Hays,    5     Sandf.     S.     C 
641 ;    Brockaway  v.   Clark,   6    Ohio    50 
Allen    V.    Brazier    et   al.,    2    Bailey    293 
Kellogg  V.    Curtis,   Admr.,  9    Pick.   534 
United   States  v.  Gurney  et  al.,  4  Cranch 
333.      But    see    to    the    contrary,  Jordan 
V.    Lewis,    2    Stew.    426,    and    Cutler     v. 


How,  8  Mass.  257;  Gower  v.  Carter,  3 
Clark  244.  Third.  "  Where  the  agree- 
ment was  evidently  made  for  the  attain- 
ment of  another  object,  to  which  the 
sum  specified  is  wholly  collateral:"  Broad- 
well  et  al.,  to  the  use,  &c.,  v.  Broadwell,  1 
Oilman  (111.)  600;  Nash  v.  Hcrmosilla, 
9  Cal.  584 ;  Burrage  v.  Crump,  3  Jonea 
L.  330.  Its  has  been  so  held  where  the 
principal  contract  was  to  convey  a  tract 
of  land:  Dyer  v.  Dorsey  et  al.,  1  Gill  & 
Johns.  44 ;  Shute  v.  Taylor,  5  Mete. 
51;  Lindsay  v.  Anesley,  6  Ired.  L.  186; 
Dennis  v.  Cummins,  3  Johns.  Cas.  297  ;  or, 
not  to  trade,  or  sell  liquor  under  a  certain 
measure,  in  a  specified  place  :  Lanhen- 
heimer  v.  Maine,  19  Wis.  519  ;  Perkins 
V.  Lyman,  11  Mass.  76;  or,  to  let  the 
plaintiff  have  the  use  of  a  building: 
Merrill  v.  Merrill,  15  Mass.  488;  Bearden 
V.  Smith,  11  Rich.  554;  or  to  submit 
to  an  award:  Hoag  v.  McGinnis,  22 
Wend.  163;  Whitcomb  v.  Preston,  13  Vt. 
53. 

Fourth.  Where  the  agreement  contains 
several  matters  of  different  degrees  of  import- 
ance, and  yet  the  sum  named  "  is  payable 
for  the  breach  of  any,  even  the  least :" 
Watt's  Exrs.  v.  Sheppard,  2  Ala.  425; 
Carpenter  et  al.  v.  Lockhart,  1  Cart.  (Ind.) 
435  ;  Hamilton  v.  Overton  et  al.,  6  Blackf. 
206 ;  McNair  v.  Thompson,  1  Condens. 
R.  S.  C.  La.  413  ;  Moore  et  al.v.  Platte  Co., 
8  Mo.  4G7;  Grover  v.  Saltmarsh,  11  Id. 
271 ;  Chaddick's  Exr.  v.  Marsh,  1  Zab. 
463 ;  Bagley  v.  Peddie,  5  Sandf.  S.  C. 
192;  Beale  v.  Hayes,  Id.  641;  Carry  v. 
Sarer,  7  Penn.  St.  470;  Allen  v.  Bra- 
zier et  al.,  2  Bailey  293 ;  Tayloe  v. 
Sandiford,  7  Wheat.  13  ;  Danville  Bridge 
Co.  V.  Pomroy  et  al.,  15  Penn.  St. 
181  ;  which  last  case  is  similar  in  prin- 
ciple to  Faunce  v.  Burke  et  al.,  16  Penn. 
St.  469,  subsequently  decided  contrari- 
.wise :  Niver  v.  Rossman,  IS  Barb.  50  ; 
Berry  v.  Wisdom,  3  Ohio  N.  S.  241  ; 
Clement  v.  Cash,  21  N.  V.  253  ;  Basye  v. 
Ambrose,    28    Mo.    30;    Thoroughgood  v. 


OF   CnOSES    IN   ACTION. 


consists.     A   oniitniot  then,  as  defined  by  Blackptonc,(Z-)  is   "anagree- 
mint  upon  sufficient  coupideration  to  do  or  not  to  do  a  particular  thing." 

(k)  2  Hla.  Com.  442. 


Walker,  3  Jones  L.  ir>;  Hammer  r.  Hraiicn- 
bacli.  31  Misso.  49;  Uailv  f.  Litchlu-M,  10 
Mich.  VJ. 

Fifth.  "  Whrro  the  contract  i.'?  no!  under 
atal,  and  the  damaget  are  capable  of  being 
cerlainli/  knotcn  and  estimated  ;  and  tliough 
the  parlien  hare  expressly  declared  the 
Rum  to  he  as  liquidated  damaRes:"  Watt's 
F.xrs  r.  Sheppard,  2  Ala.  425;  Spencer  v. 
Tilden  et  at.,  5  Cowen  144;  Graham  v. 
Bickham,  4  Pal.  149. 

"On  the  other  hand,  it  will  he  inferred 
that  the  parties  intended  the  sum  as  liqui- 
dated damaget:  First.  Where  the  damages 
are  uncertain,  and  are  not  capable  of  being 
aterrtained,  by  any  satisfactory  and  known 
rule;  whether  the  uncertainty  lies  in  the 
nature  of  the  subject  itself,  or  in  the 
particular  circumstances  of  the  case:" 
Watt's  Exrs.  v.  Sheppnrd,  2  Ala.  425 ; 
Hamilton  v.  Overton  et  al.,  1  Carter  (Ind.) 
484;  (lammon  v.  Howe,  14  Maine  250; 
Bripht  f.  Rowland,  3  Howard  (Mo.)  398; 
Dakin  et  al.  t>.  Williams  et  al.,  17  Wend. 
447:  8.  c.  22  Id.  201;  Hoag  v.  McGinnis, 
Id.  163;  Baplcy  v.  Peddie,  16  N.  Y.  469. 
It  has  been  decided,  that  the  sum  specified, 
was  liquidated  damages,  and  not  a  penalty, 
where  the  agreement  was  not  to  carry  on 
a  trade  in  a  specified  place:  Miller  v. 
Elliott,  1  Carter  (Ind.)  484;  Peirce  v. 
Fuller,  8  Mass.  223;  Noble's  Admx.  v. 
Batcf,  7  Cowen  307;  Smith  v.  Smith, 
4  Wend.  468;  Mott  v.  Mott,  11  Barb. 
S.  C.  127;  Grasselli  u.  Lowden,  11  Ohio 
N.  S.  349;  Duffy  v.  Shockey,  11  Ind. 
70;  Jaquith  r.  Hudson,  5  Mich.  123; 
Streeter  v.  Rush,  25  Cal.  67,  or  to  pay 
a  certain  rate  per  ton,  for  a  certain  amount 
of  coal  mined  or  not  mined,  within  a 
definite  time:  Powell  v.  Borroughs,  54 
Penn.  St.  329;  so.  where  it  was  agreed 
to  pay  a  certain  sum,  for  the  delay  of  each 
week,  month.  &c.,  in  finishing  a  work, 
stipulated  to  he  completed  at  a  certain 
time:    Curtis  et  al.  r.    Brewer,    17   Pick. 


513;  Worrell  v.  McClinaghan  et  ux.,  5 
Strob.  115;  Watt's  Exrs.  v.  Sheppard,  2 
Ala.  422  ;  Hall  v.  Crowley,  5  Allen  (Mass.) 
304  ;  anil  by  the  English  authorities  it  has 
been  held,  that  where  it  is  agreed  that  a 
certain  specified  sum  shall  be  paid  in  case 
any  act  amounting  to  waste  shall  be  com- 
mitted, it  is  a  stipulation  for  liquidated 
damages :  Aylett  v.  Dodd,  2  Atk.  239 ; 
Woodward  v.  Gyles,  2  Vern.  119  ;  Rolfe  v. 
Peterson,  2  Bro.  P.  C.  436. 

Second.  "Where  from  the  nature  of  the 
case,  and  the  tenor  of  the  agreement,  it  ia 
apparent,  that  the  damages  have  already 
been  the  subject  of  actual  and  fair  calcu- 
lation and  adjustment  between  the  par- 
ties:" Alexander  v.  Troutman,  1  Kelley 
472 ;  McNair  v.  Thompson,  1  Condens. 
R.  S.  C.  La.  413;  McGlorin  v.  Henderson 
et  al.,  6  La.  720  ;  Price  et  al.  v.  Tucker, 
5  La.  Ann.  514;  Graham  v.  Bickham, 
4  Dal.  149  ;  Pierce  v.  Jung,  10  Wis.  30  ; 
Dunlop  V.  Gregory,  10  N.  Y.  241  ;  Dwinel 
V.  Brown,  54  Maine  468.  The  cases  exem- 
plifying this  principle  are,  where  the 
agreement  was  to  pay  a  sura  of  money, 
in  goods,  at  a  certain  price  :  Braham  et  al. 
%K  Le  Roy  Pope  et  al.  1  Stew.  (Ala.)  135  ; 
Brooks  x>.  Hubbard,  3  Conn.  58  ;  or,  to  sell 
personal  property,  or  to  convey  land,  and 
in  default  thereof,  to  pay  a  specified  sum  : 
Tingley  v.  Cutler,  7  Conn.  291  ;  Allen  v. 
Brazier,  2  Bailey  293  ;  Heard  v.  Bowers  et 
al.  23  Pick.  455  ;  Hodges's  Exr.  v.  King, 
7  Mete.  587;  Cartwright  et  al.  v.  Gar- 
dener, 5  Cush.  273  ;  Chamberlain  v.  Bag- 
ley,  11  N.  H.  235;  Mead  v.  Wheeler,  13 
Id.  351  ;  Hasbrouck  v.  Tappen,  15  Johns. 
203;  Stosson  v.  Beale,  7  Id.  72;  Knapp 
t'.  Maltby,  13  Wend.  587  ;  Gray  v.  Crosby, 
18  Johns.  219  ;  Pearson  v.  Williams's 
Admrs.,  24  Wend.  244;  s.  c.  26  Id.  630; 
Sawyer  v.  Mclntire,  18  Vt.  27;  Mundy  v. 
Culver,  18  Barb.  336;  Williams  v.  Green, 
14  Ark.  315  ;  Fisk  v.  Fowler,  10  Cal.  512  ; 
Streeper   v.  Williams,  48   Penn.  St.  450; 


OF   CONTRACTS.  7ti 

This  agreement  may  be  either  express  or  implied ;  for  the  law  always 
implies  a  promise  to  do  that  which  a  person  is  legally  liable  to  perform, 
and  the  action  of  assumpsit  on  promises  is  constantly  maintained  for 
damages  for  the  breach  of  such  an  implied  contract.(Z)  Thus  a  person 
who  takes  the  goods  of  a  tradesman  is  liable  in  assumpsit  for  their 
market  value  ;  for,  as  he  took  the  goods,  the  law  will  imply  for  him  a 
promise  to  pay  for  them.  So  a  person  who  employs  another  to  work  for 
him  impliedly  contracts  to  give  him  reasonable  remuneration  ;  and  a  man 
who  borrows  money  impliedly  promises  to  repay  it.  And  in  all  these 
cases  the  plaintiff,  until  recently,  plainly  stated  that  the  defendant 
promised  the  plaintiff  to  pay  him  the  money  on  request,  and  that  the  de- 
fendant had  disregarded  his  promise,  and  had  not  paid  the  same  moneys 
or  any  part  thereof.  But  the  Common  Law  Procedure  Act,  1852,  now 
requires  that  all  statements  of  this  kind  shall  be  omitted. (w) 

Express  contracts  are  either  by  parol,  or  word  of  mouth,  which  are 
called  simple  contracts^  or  by  deed  under  seal,  which  are  called  special 
contracts  ;[n)  although  simple  contracts  may,  and  often  must  at  the 
present  day,  be  evidenced  by  writing.  Let  us  consider  first  mere  parol 
or  simple  contracts.  A  parol  contract  then  is  an  agreement  by  word  of 
mouth,  upon  sufficient  ^consideration,  to  do  or  not  to  do  a  par-  r:|:7-q-i 
ticular  thing.  According  to  the  law  of  England  a  consideration 
is  an  essential  ingredient  in  every  contract :  a  promise  without  a  consi- 
deration is  regarded  as  nudum  pactum^  and  no  recompense  can  be  recov- 
ered for  its  breach, (o)  neither  will  its  performance  be  enforced  in  a  court 
of  equity.(j3)  Thus  if  a  man  promise  to  give  mo  100^.  without  any  con- 
sideration, he  is  not  bound  to  perform  his  promise,  and  I  am  without 
remedy  if  he  should  break  his  word.  So  even  if  I  should  have  done  him 
any  service,  his  subsequent  promise  to  pay  me  money,  or  otherwise  bene- 

{l)  Stephen  on  Pleading  18.  (»«)  Stat.  15  &  16  Vict.  c.  76,  s.  49. 

(n)  Rann  v.  Hughes,  7  Term  Rep.  351,  n. 

(o)  Doctor  &  Student,  dial.  2,  c.  24 ;  2  Bla.  Cora.  445. 

{p)   1  Fonb.  Eq.  335  et  seq.;  Dipple  v.  Corles,  11  Hare  183. 

Morse  v.  Rathburn,  42  Mo.  594;  or  that  a  rent,  for  such  time  as  a  lessee  held   pos- 

security  should  become  void,  if  put  in  suit  session  beyond  the  expiration  of  his  term  : 

before  the  time  limited  in  a  letter  of  license  Walker    v.    Engler,   30   Mo.   130;     or    to 

granted  to  the  debtor:  White  v.  Tingley,  4  forfeit  half  the  freight  in  case  a  vessel  did 

Mass.  433  ;  or,  to  pay  a  specified  sum  of  not   sail   by  a    certain    time :    Sparrow  v. 

money,  if  a  certain  receipt  did  not  contain  Paris,  7  H.  &  N.  594. 

a  true  and  proper  method  for  making  im-  See     also,     Chase    v.    Allen,    13    Gray 

proved    incorruptible    teeth :    Brewster  v.  42 ;    Dermott   v.   Wallack,    1   Wall.    U.  S. 

Edgerly,   13  N.  H.  275  ;  or  to  pay  double  61. 


73  OF  cnosES  in  action. 

fit  mc,  for  a  consideration  already  executed  on  my  part,  will  not  be  bind- 
ing, unless  I  should  have  done  him  the  service  at  his  request,  in  which 
case  the  promise  will  relate  back  to  the  request,(g)  or  unless  a  request 
can  be  implied  from  a  subsequent  allowance  of  the  service,  or  from  other 
circumstances  ;(r)  and  if  the  service  rendered  be  of  such  a  nature  that 
the  law  will  imply  a  promise  in  respect  of  it,  any  subsequent  express  pro- 
mise different  from  that  which  the  law  will  imply  will  be  void  as  imdum 
pactum.{s)  And  if  the  service,  or  any  part  of  it,  has  been  illegal  from 
being  contrary  to  the  common  law  or  to  any  statute,  such  illegal  consi- 
deration will  not  support  a  promise.  Thus  a  promise  made  in  considera- 
tion that  the  other  party  had  published  a  libel  at  the  request  of  the  per- 
son making  the  promise,  and  had  also  at  the  like  request  incurred  certain 
r*741  costs,  was  held  void  on  account  *of  the  illegality  of  part  of  the 
consideration,  namely,  publishing  the  libel,  which  vitiated  the 
whole.(^)  And  in  like  manner  the  circumstance  of  a  woman's  having 
cohabited  with  a  man  is  not  of  itself  a  valid  consideration  to  support  a 
promise  made  by  him  to  pay  her  a  sum  of  money. (w) 

Considerations  are  divided  in  law  into  two  classes,  good  (sometimes 
called  meritorious)  and  valuable.  A  good  consideration  is  that  of  blood, 
or  the  natural  love  and  affection  which  a  person  has  to  his  children,  or 
any  of  his  relatives. (y)  A  valuable  consideration  may  be  either  pecu- 
niary, namely,  the  payment  of  money  ;  or  the  gift  or  conveyance  of  any- 
thing valuable ;  or  it  may  be  the  consideration  of  the  marriage  of  the 
party  himself  or  of  any  relative  ;(w)  or  the  compromise  of  a  bona  fide 
claim  ;{x)  or  any  act  of  one  party  from  which  the  other,  or  any  stranger 
at  his  request,  express  or  implied,  derives  any  advantage ;  or  any  labor, 
detriment,  inconvenience  or  risk  sustained  by  the  one  party,  if  such 
labor  be  performed,  or  such  detriment,  inconvenience  or  risk  be  suffered 

{q)  Hunt  V.  Bate,  Dyer  272  a;  Lampleigh  v.  Brathwait,  Hob.  105;  1  Smith's  Lead- 
ing Cases  67;  Powle  v.  Gunn,  4  N.  C.  445,  448  ;  Eastwood  v.  Kenyon,  11  Ad.  &  E.  438, 
451  (E.  C.  L.  R.  vol.  39) ;  s.  c.  3  Per.  &  Dav.  282  ;   1  Wms.  Saund.  264,  n.  (1). 

(r)  The  maxim  is  07jmis  ratihahito  retrotrahitur  et  mandato  lequiparatur  :  1  Wms.  Saund, 
264  b.  n.  (e). 

(«)  Hopkins  v.  Logan,  5  M.  &  W,  241,  247. 

\t)  Shackell  v.  Rosier,  2  Bing.  N.  C.  634,  644  (E.  C.  L.  R.  vol.  29). 

(w)  Binnington  v.  Wallis,  4  B.  &  Aid.  650,  652  (E.  C.  L.  R,  vol.  6).  See  however  Gib- 
son V.  Dickie,  3  M.  &  Sehv.  463;  Keenan  v.  Handley,  2  De  G.,  J.  &  S.  283. 

{v)   2  Black.  Com.  297,  444. 

(w)  Campion  v.  Cotton,  17  Ves.  263  ;  Eraser  v.  Thompson,  1  GifiF.  49,  65  ;  reversed 
on  appeal,  4  De  G.  &  J.  659. 

{x)  Lucy's  Case,  4  De  G.,  M.  &  G.  356 ;  Cook  v.  Wright,  1  B.  &  S.  559  (E.  C.  L.  R. 
vol.  101), 


OF   CONTRACTS.  74 

by  the  one  party  at  the  request,  express  or  implied,  of  the  other, 
although  such  other  may  himself  derive  no  actual  benefit.(?/)  A  good 
consideration  is  not  of  itself  sufficient  to  support  a  promise,  any  more 
than  the  moral  obligation  which  arises  from  a  man's  passing  his  word ; 
neither  will  the  two  together  make  a  binding  contract ;  thus  a  promise  by 
a  father  to  *make  a  gift  to  his  child  will  not  be  enforced  against  rj^^nr-i 
him. (2)  The  consideration  of  natural  love  and  affection  is  indeed 
good  for  so  little  in  law,  that  it  is  not  easy  to  see  why  it  should  be  called 
a  good  consideration ;  for  in  law  it  is  considered  as  not  good  against 
creditors  within  the  statute  13  Elizabetli,(a)  in  which  the  very  phrase 
good  consideration  is  used ;  it  is  not  good  to  support  a  contract ;  and  a 
gift  for  such  consideration  is  regarded  as  simply  voluntary. (6)  The  only 
reason  why  such  a  consideration  should  be  called  good  appears  to  be, 
that  in  early  times,  previously  to  the  passing  of  the  Statute  of  Uses,(c) 
the  Court  of  Chancery  enforced  a  covenant  to  stand  seised  of  lands  to  the 
use  of  any  person  of  the  blood  of  the  covenantor,  on  account  of  the  good- 
ness of  the  consideration ;  whence  it  has  happened  that,  since  that  stat- 
ute, the  legal  estate  (being  by  that  statute  annexed  to  the  \xse){d)  will 
pass  to  a  relative  under  a  covenant  to  stand  seised  to  his  use.(e)  But  the 
rules  that  anciently  governed  the  Court  of  Chancery  do  not  now  regulate 
its  proceedings ;(/)  although  modern  equity  will  still  interfere  in  favor 
of  a  wife  or  child  in  some  cases  in  which  it  will  not  interpose  on  behalf  of 
strangers.  (^) 

A  valuable  consideration  is,  therefore,  in  all  cases  necessary  to 
form  a  valid  contract.^     It  has  indeed  been  ^thought  that  an  ex-    ^       -' 

(7/)  Selwyn's  Nisi  Prius,  tit.  Assumpsit,  46;  1  Wms.  Saund.  211  d,  n.  (2)  ;  2  Wms. 
Saund.  137  h,  n.  (e). 

(z)  Jeffery  ?;.  JefiFrej,  1  Craig  &  Ph.  138  ;  Dillon  v.  Coppin,  4  Myl.  &  Cr.  647  ;  Hollo- 
way  V.  Headington,  8  Sim.  324;  Meek  v.  Kettlewell,  1  Hare  4G4  ;  1  Phil.  342.  See 
however  Ellis  v.  Nimmo,  Lloyd  &  Goold  333. 

(a)  Twyne'  Case,  3  Rep.  80  b  ;  ante,  p.  48. 

(6)  2  Black.  Com.  297.  (c)  27  Hen.  VIII.  c.  10. 

{d)  Principles  of  the  Law  of  Real  Property  126  ei  seq.,  2d  ed.  ;  131,  3d  &  4th  eds.  ; 
136,  5th  ed. ;   143,  6th  ed.  ;   147,  7th  ed. ;  153,  8th  ed. 

(e)  Ibid.  p.  159,  2d  ed. ;  164,  3d  ed.;  166,  4th  ed. ;  173,  5th  ed. ;  181,  6th  ed.;  185, 
7th  ed.;   194,  8th  ed. 

(/)  Ibid.  p.  131,  2d  ed. ;  135,3d  &  4th  eds.;  141,  5th  ed.;  148,6th  ed. ;  151,7th 
ed. ;   157,  8th  ed. 

(g)  Ibid.  p..  239,  2d  ed. ;  246,  3d  ed.  ;  248,  4th  ed.  ;  258,  5th  ed. ;  270,  6th  ed. ;  276, 
7th  ed.  ;  288,  8th  ed. 


1  The  obligation  of  a  contract  cannot  be     stitution  of  the  United   States,  Art.  1,  Sec, 
impaired  by  subsequent  legislation :   Con-     10  CI.   1;    Constitution  of  Pennsylvania. 


76 


OF   CHOSES   IN   ACTIOX. 


press  promise,  founded  on  a  moral  obligation  is  sufficient  for  this  pur- 
pose.(/i)  This  however  appears  to  be  a  mistake.  An  express  promise 
can  give  no  original  right  of  action,  if  the  obligation  on  which  it  is  founded 
could  never  have  been  itself  enforced.(^')  But  in  some  cases  a  valuable 
consideration,  which  might  have  formed  a  contract  by  means  of  an  implied 
promise,  had  its  operation  not  been  suspended  bj  some  positive  rule  of 
law,  may  be  revived  and  made  available  by  a  subsequent  express  pro- 
mise.^    Thus  a  debt  barred  by  the  debtor's  having  become  bankrupt  and 


(h)  Lee  v.  Miiggeridge,  5  Taunt.  36  (E.  C.  L.  R.  vol.  1).  This  case  may  now  be  con- 
sidered as  virtually  overruled  by  subsequent  authorities  mentioned  in  the  next  note. 
See  however  Dawson  v.  Kearton,  3  Sm.  &  G.  190,  gu.? 

(i)  Note  to  Wennall  v.  Adne.v,  3  Bos.  &  Pul.  252;  Littlefield  v.  Shee,  2  B.  &  Ad.  811 
(E.  C.  L.  R.  vol.  22) ;  Meyer  v.  Haworth,  8  Ad.  &  E.  467  (E.  C.  L.  R.  vol.  35) ;  s.  c.  3 
N.  &  P.  462;  Monkman  v.  Shepherdson,  11  Ad.  L  E.  411,415  (E.  C.  L.  R.  vol.  39);  s. 
c.  3  Per.  &  Dav.  182  ;  Jennings  v.  Brown,  per  Parke,  B.,  9  M.  &  W.  501  ;  Eastwood 
V.  Kenyon,  11  Ad.  &  E.  447  (E.  C.  L.  R.  vol.  39)  ;  s.  c.  3  Per.  &  D.  276  ;  2  Wms.  Saund. 
137  f,  n.  (e) ;  Beaumont  v.  Reeve,  8  Q.  B.  483  (E.  C.  L.  R.  vol.  55). 


Arb.  IX.  Sec.  17.  Hence  it  has  been  held 
that  a  contract  made  before  the  passage 
of  the  Act  of  February  25,  1862,  contain- 
ing a  covenant  for  the  payment  of  gold 
and  silver  money,  may  be  still  enforced  by 
insisting  upon  the  payment  of  the  stipu- 
lated coin,  notwithstanding  the  said  Act 
of  Congress  made  the  treasury  notes  of 
the  United  States  a  legal  tender  for 
debts :  Bronson  v.  Rodes,  7  Wall.  U.  S. 
229;  Butler  v.  Harwitz,  Id.  258;  but  a 
contract  for  the  payment  of  lawful  money 
made  before  the  passage  of  said  Act,  is 
payable  in  United  States  notes:  Knox  v. 
Lee,  and  Parker  v.  Davis,  11  Id.  682;  29 
Leg.  Intel.  36;  overruling  Hepburn  v. 
Griswold,  8  Id.  603. 

1  The  general  rule  of  law  prevailing  in 
the  several  States  of  the  Union  is,  that  a 
promise,  made  subsequent  to  the  con- 
sideration upon  which  it  is  based,  is  not 
sufficient  to  support  an  action  :  Barlow  v. 
Smith  et  al.,  4  Vt.  139  ;  Buckley  et  al.  v. 
Laudon  et  al.,  2  Conn.  404  ;  s.  c.  3  Id.  76  ; 
Jones  V.  Shorter  et  al.,  Admrs.,  1  Kelley 
(Geo.)  29^  ;  Waters  et  al.  v.  Simpson  et 
al.,  2  Gilm.  (111.)  574 ;  Carson  v.  Clark,  1 
Scammon  114;  Hutsen  v.  Overturf,  Id. 
170;  Roberts  v.  Garen,  Id.  396;  Townsend 
V.  Briggs,  Id.  472;  Boston  v.  Dodge,  1 
Blackf.    19;    Carr   v.    Allison,    5    Id.     64; 


Head's  Exr.  and  Exrx.  v.  Manner's  Admrs., 
5  J.  J.  Marsh  257  ;  Balcolm,  Exrx.,  v.  Crag- 
gin,  5  Pick.  295  ;  Andover,  &c.,  v.  Gould,  6 
Mass.  43;  Mills  v.  Wyman,  3  Pick.  207; 
Dodge  V.  Adams,  19  Pick.  429;  Ridgway 
V.  English.  2  Zabr.  416;  Phetteplace  v. 
Steere,  2  Johns.  443 ;  Frear  v.  Harden- 
burgh,  5  Id.  272;  Tioga  v.  Seneca,  13  Id. 
380  ;  Watkins  v.  Halstead,  3  Sandf.  S.  C. 
311;  Ehle  v.  Judson,  24  Wend.  97;  16 
Johns.  283,  n. ;  Comstock  v.  Smith,  7  Id. 
87  ;  Smith  v.  Ware,  13  Id.  257  ;  Hatchell  v. 
Odom,  2  Dev.  &  Bat  302  ;  Johnson  v.  John- 
son, 3  Hawks.  556 ;  Snevily  v.  Read,  9 
Watts  396 ;  Garrett  v.  Stuart,  1  McCord 
515  ;  Massey  v.  Craine,  Id.  489;  Hanley  v. 
Farrer,  1  Vt.  420  ;  Parker  v.  Carter  et  al., 
4  Munf.  273  ;  Bank  of  Washington  v.  Ar- 
thur et  al.,  3  Gratt.  173  ;  Colter  v.  Green- 
hagen,  3  Min.  126 ;  Ellison  v.  Jackson,  &c., 
Co.,  12  Cal.  542  ;  Smith  v.  Mudgett,  20  N. 
H.  527  ;  Robinson  v.  Marshall,  11  Md.  251  ; 
Amity  Township  v.  Reed,  62  Penn.  St. 
442 ;  Heslep  v.  Sacramento,  2  Cal.  580, 
which  last  was  a  suit  brought  by  the  ad- 
ministrator of  one,  who  had  been  the 
Mayor  of  Sacramento,  to  recover  $10,000, 
which  the  Common  Council  had  voted 
him,  in  consideration  of  the  expenses  he 
had  incurred  in  his  illness,  which  was 
brought  about  by  being  wounded,  while 


OF   CONTRACTS. 


76 


obtained  his  certificate,  might  formerly  have  been  enforced  against  him, 
if,  after  his  bankruptcy,  he  had  expressly  promised  to  pay  it  •,{j)  but  such 

{j)  Trueman  v.  Fenton,  Cowp.  544 ;   Kirkpatrick  v.  Tattersall,  13  M.  &  W.   7G6. 


endeavoring  to  quell  certain  public  distur- 
bances. There  are,  however,  many  cases 
where  a  subsequent  promise  will  support 
an  action,  and  which,  as  exceptions  to  the 
general  rule  above  stated,  maybe  classified 
as  follows : 

First.  Where  a  subsequent  promise  fol- 
lows a  previous  request:  Carson  v.  Clark, 

1  Scam.  114;  Ridgway  v.  English,  2  Zabr. 
416  ;  Frear  v.  Hardenburgh,  5  Johns.  272  ; 
Tioga  V.  Seneca,  13  Id.  380;  Doty  v.  Wil- 
son, 14  Id.  378  ;  Livingston  v.  Rogers,  1 
Caines  583  ;  Comstock  v.  Smith,  7  Johns. 
87  ;  McMorris  v.  Herndon,  2  Bail.  56  ;  Lons- 
dale V.  Brown,  4  Wash.  C.  C.  150. 

Second.  Where  there  has  not  been  a 
previous  express  request,  but  one  may  be 
implied,  from  a  subsequent  recognition  of 
the  service  performed,  which  must  be 
beneficial  to  the  one  party,  or  detrimental 
to  the  other;  thus,  where  one  person  pays 
the  debt  of  another,  and  the  debtor,  there- 
upon, promises  to  reimburse  him:  Keenan 
V.  Halloway,  16  Ala.  53  ;  Weekly  v.  Burn- 
han  et  al.,  2  Stew.  500 ;  Roundtree  v.  Hol- 
loway,  13  Ala.  359 ;  Roundtree  v.  Weaver, 
8  Id.  314;  Bertrand  v.  Byrd,  2  Ark.  651 ; 
Stocking  V.  Sage  etal.,  1  Conn.  519  ;  Gard- 
ner et  al.  V.  Towsey,  3  Litt.  426;  Nixon  v. 
Jenkins,  1  Hilton  318  ;  or,  where  merchan- 
dise is  delivered  at  one's  house,  and  he  to 
whom  the  goods  are  sent,  sanctions  the 
act  by  retaining  them  :  Gardner  et  al.  v. 
Towsey,  3  Litt.  426;  McMorris  v.  Herndon, 

2  Bail.  56;  so,  also,  where  two  go  bail  for 
a  third,  and  one  of  them,  at  much  expense, 
surrenders  the  principal,  and  the  other 
surety  promises  to  pay  his  proportion  of 
the  expense :  Greeves  v.  McAllister,  2  Binn. 
591  ;  and,  the  past  use  of  money,  has  been 
held  a  good  consideration  to  support  a 
promise  to  pay  interest:  Garland  v.  Lock- 
ett,  5  N.  S.  (La  )  40  ;  there  are  many  other 
such  cases  :  Webster  et  al.  v.  Drinkwater, 
5  Greenl.  322  ;  Farnham  v.  O'Brien,  22 
Maine  481  :   Davenport  t;.  Mason,  15  Mass. 


74;  R.  &  H.  Stewart  v.  Eden,  2  Caines 
150;  Oatfield  y.  Waring,  14  Johns.  192; 
Doty  V.  Wilson,  Id.  378  ;  Parker  v.  Crane, 
6  Wend.  647;  Hicks  v.  Burhans  et  al.,  10 
Johns.  243 ;  Cunningham  v.  Garvin,  10 
Penn.  St.  366  ;  Seymour  v.  Marlboro,  40  Vt. 
171. 

Third.  Where  one  is  under  a  moral  obli- 
gation to  do  a  certain  act,  and  subse- 
quently, makes  an  express  promise  to  do 
what  he  was  bound  by  the  prior  moral 
obligation  to  perform  :  Commissioners  of 
Canal  Fund  v.  Perry,  5  Ohio  48  ;  Hill  v. 
Henry,  17  Id.  9  ;  Shenk  v.  Mingle,  13  S.  & 
R.  29;  Nesmuth  v.  Drum,  8  W.  &  S.  9; 
McMorris  v.  Herndon,  2  Bail.  56 ;  Glags  v. 
Beach,  5  Vt.  176.  But  it  is  not  every 
moral  obligation  that  will  support  a  sub- 
sequent promise  ;  for  a  promise  to  feed  the 
hungry,  or  clothe  the  naked,  or  to  perform 
acts  of  benevolence  and  charity,  will  not 
support  an  action  ;  as,  where  a  son  pro- 
mised to  pay  for  necessaries,  which  had 
been  advanced  to  his  father,  if  he  did  not, 
such  promise  was  held  not  binding :  Cook 
V.  Bradley,  7  Conn.  57  ;  Parker  v.  Carter 
et  al.,  4  Munf.  273  ;  and  the  same  was  held 
of  an  agreement  by  a  father,  to  pay  for 
the  expenses  of  the  sickness  of  a  son,  who 
was  of  age,  and  away  from  home,  made 
subsequently  to  their  being  incurred  :  Mills 
V.  W^yman,  3  Pick.  207 ;  and,  of  the  same 
principle  are  :  Dodge  v.  Adams,  19  Pick. 
429;  Ridgwayv.  English,  2  Zabr.  416;  and 
Watkins  v.  Halstead,  3  Sandf.  C.  311, 
which  last  was  a  promise  by  a  married 
woman,  made  after  her  divorce  from  her 
husband,  to  pay  for  necessaries  which  had 
been  furnished  her  during  her  coverture  ; 
but  see  Hemphill  v.  McClimans,  24  Penn, 
St.  367  ;  Viser  v.  Bertrand,  14  Ark.  267  ; 
all  of  which  cases,  as  well  as  the  follow- 
ing, prove  that  by  the  term  "moral  obli- 
gation," as  applied  legally,  is  meant,  what 
the  moralist  would  call  a  perfect  moral 
obligation,  that  is,  an  obligation  of  justice, 


76 


or  cnosES  in  action. 


a  promise  was  required,  by  tlie  modern  bankrupt  acts,(/c)  to  be  made  in 
writing  signed  by  the  bankrupt,  or  by  some  person  thereto  laAvfully 

(k)  6  Geo.  TV.  c.  16,  s.  131  ;  5  &  6  Vict.  c.  122,  s.  43. 


and  not  merely  of  benevolence  and  piety  : 
Jones  V.  Sliorter  et  al.,  Admrs.,  1  Kelly 
294;  Farnham  v.  O'Brien,  22  Maine  481; 
Andover,  &c.,  v.  Gould,  6  Mass.  43  ;  Da- 
venport t'.  Mason,  15  Id.  74;  Mercer  v. 
Stark,  Walk.  (Miss.)  451  ;  Tioga  v.  Seneca, 
13  Johns.  380  ;  Hatchell  v.  Odom,  2  Dev.  & 
Bat.  302  ;  McMorris  v.  Herndon,  2  Bail.  56  ; 
Hanley  v.  Farrar,  1  Vt.  420.  But  other 
cases  indicate  still  more  specifically,  what 
is  meant  by  the  term  "moral  obligation," 
showing  that  "  it  is  not  expressive  of  any 
vague  and  undefined  claim,  but  of  those 
imperative  duties,  which  would  be  enforce- 
able at  law,  were  it  not  for  some  positive 
rule  of  law,  legal  maxim,  or  statute  provi- 
sion, which,  with  a  view  to  general  bene- 
fit, exempts  the  party  in  that  particular 
instance,  from  legal  liability.  On  such 
duties,  so  exempted,  the  express  promise 
operates  to  revive  the  liability,  and  take 
away  the  exemption,  because  if  it  were  not 
for  the  exemption,  they  would  be  en- 
forced at  law  through  the  medium  of  an 
implied  promise  :  "  Paul  v.  Stackhouse,  38 
Penn.  St.  304.  And  see  also,  Shepard  v. 
Rhodes,  7  R.  I.  470. 

See  also  to  the  same  point,  one  class  of 
cases  proving  this,  relative  to  bankrupts  or 
insolvents,  who,  after  obtaining  a  dis- 
charge, have  promised  their  creditors  to 
pay  them  in  full  :  Maxim  v.  Morse,  8  Mass. 
127  ;  Trumbull  v.  Tilton,  1  Fost.  (N.  H.) 
129  ;  Graham  v.  Hunt,  8  B.  Mon.  8  ;  Ship- 
pey  V.  Henderson,  14  Johns.  178 ;  Erwin  v. 
Saunders  et  al.,  1  Cowen  249  ;  Stafford  v. 
Bacon,  25  Wend.  384  ;  Depuy  v.  Stewart,  3 
Id.  135  ;  Kingston  v.  Wharton,  2  S.  &  R. 
208 ;  Earnest  v.  Parke,  4  Rawle  452 ; 
Field's  Estate,  2  Id.  351 ;  Lonsdale  v. 
Brown,  4  Wash.  C.  C.  150  ;  Bearing  v. 
MofiRtt,  6  Ala.  776  :  Sconton  v.  Eislord,  7 
Johns.  36  ;  Brown  et  ux.  v.  Collins,  8  Hum. 
511  ;  Feeny  v.  Daly,  8  Gal.  84 ;  but  note  a 
difference,  between  a  release  by  provisions 
of  positive   law,  and    a    discharge    by  the 


voluntary  act  of  the  creditor  :  Montgomery 
V.  Lampton,  3  Mete.  (Ky.)  519.  Another 
class  of  cases  has  arisen  from  promises  to 
pay  debts  barred  by  the  statute  of  limita- 
tions, in  which  the  promises  were  held 
valid:  Carson  v.  Clark,  1  Scam.  114; 
Head's  Exr.  and  Exrx.  v.  Manner's  Admrs., 
5  J.  J.  Marsh.  257  ;  Harrison  v.  Handley, 
1  Bibb  443  ;  Gray  v.  Lawridge,  2  Id.  285  ; 
Bell  V.  Rowland's  Admrs.,  Hard.  301  ;  Guy 
V.  Tarns,  6  Gill  85  ;  Bangs  v.  Hall,  2  Pick. 
368;  Davenport  v.  Mason,  15  Mass.  74; 
Dawes  v.  Shed  et  al.,  Exrs.,  15  Id.  7  ; 
Exeter  Bk.  v.  Sullivan  et  al.,  6  N.  H.  135  ; 
Kittredge  v.  Brown,  9  Id.  377  ;  Walker  v. 
Eastman,  6  Id.  367  ;  Buswell  v.  Roby,  3  Id. 
467;  Stanton  v.  Stanton,  2  Id.  425  ;  At- • 
wood  V.  Coburn,  4  N.  H.  315  ;  Rice  et  al. 
V.  Wilder  et  al..  Id.  336  ;  Belton,  Admr.,  V 
Cutts,  Admr.,  11  Id.  170;  Ridgway  v. 
English,  2  Zabr.  416;  Exrs.  of  Conovers 
V.  Conover  et  al..  Sax.  404;  Saltur  v.  Sal- 
tur's  Admr.,  1  Halst.  405  ;  Danforth  v. 
Culber,  11  Johns.  146  ;  Sands  v.  Gelston, 
15  Id.  511  ;  Hatchell  v.  Odom,  2  Dev.  & 
Bat.  302  ;  Sherrod  v.  Bennet  et  al.,  8  Ired. 
309  ;  Peebles  v.  Mason,  2  Dev.  367  ;  Small- 
wood  V.  Smallwood,  2  Dev.  &  Bat.  330; 
Rainey  v.  Link,  3  Ired.  376 ;  Turner  v.  Chris- 
man,  20  Ohio  332  ;  Hill  v.  Henry,  17  Id.  9; 
Jones  et  al.,  Exrs.  v.  Moore,  Admr.,  5  Binn. 
573  ;  Suter  v.  Sheeler,  22  Penn.  St.  308  ; 
Eckert  v.  Wilson,  12  S.  &  R.  393  ;  Fries  v. 
Boiselet,  9  Id.  128  ;  Farly  v.  Rustenbaden, 
3  Penn.  St.  418  ;  Haylebaker  v.  Reeves, 
12  Id.  264 ;  Forney  v.  Benedict,  5  Id.  225 ; 
Gilkyson  v.  Larue,  6  W.  &  S.  213;  Davis  v. 
Steiner,  14  Penn.  St.  275  ;  Harbold's  Exrs. 
V.  Kuntz,  4  Id.  210 ;  Huff  v.  Richardson,  7 
Id.  388  ;  Reynolds  v.  Johnson,  9  Humph. 
444  ;  Coles  v.  Kelsey,  2  Texas  541  ;  Burton 
V.  Stevens,  24  Vt.  131;  22  Id.  179;  Pad- 
dock V.  Colby  et  al.,  18  Vt.  485;  Clement- 
son  V.  Williams,  8  Cranch  72  ;  Wetzell  v. 
Bussard,  11  Wheat.  309  ;  Bell  v.  Morrison, 
1  Peters  351  ;  Lonsdale  v.  Brown,  4  Wash. 


OF   CONTRACTS. 


76 


authorized  by  him  in  writing  ;  and  the  Bankrupt  Law  Consolidation  Act, 
1849,  rendered  all  such  promises  void ;(?)  and  a  similar  provision  is  con- 


(l)  Stat.  12  &  13  Vict   c.  106,  s.  204;  Kidson  v.  Turner,  3  H.  &  N.  581. 


C.  C.  150  ;  Raudon  v.  Toby,  11  How.  493  ; 
Chandler  v.  Glover's  Admr.,  32  Penn.  St. 
509:  Pritchard  v.  Howell,  1  Wis,  131. 

Upon  the  same  principle,  promises,  made 
by  one  after  arriving  at  full  age,  to  do 
what  he  agreed  to  do  while  a  minor,  have 
been  held  to  be  legally  operative  :  Bliss  et 
al.  V.  Ferryman,  Scam.  484  ;  Taylor  t'.  Run- 
dell,  2  Annual.  R.  367;  Merriam  et  a\.  v. 
Wilkins  et  al.,  6  N.  H.  432 ;  Wright  v. 
Steele,  2  Id.  51  ;  or,  a  promise  made  by  a 
child  who  was  heir  to  a  large  estate,  to  her 
brother-in-law,  after  she  came  of  age,  that 
she  would  indemnify  him  against  all  loss, 
by  reason  of  a  contract  he  had  made  with 
a  tliird  party,  to  be  responsible  for  the 
charges  of  said  child  while  a  minor : 
Baker  v.  Gregory,  28  Ala.  544.  And  by 
analogy  with  the  foregoing  cases,  if  the 
consideration  be  still  continuing,  a  subse- 
quent promise  will  be  valid  :  Carroll  v. 
Nixon,  4  W.  &  S.  516  ;  Carman  v.  Noble, 
9  Pena,  St.  366 ;  Nesmuth  v.  Drum,  8  W. 
&  S.  9  ;  Lonsdale  v.  Brown,  4  Wash.  C.  C. 
150  ;  Grove  v.  McCalla,  21  Penn,  St.  44  ; 
Bailey  v.  Bussing,  29  Conn.  1  ;  so,  a  prom- 
ise to  pay  the  principal  of  a  debt,  void  by 
the  usury  laws,  is  binding  :  Early  v.  Mahon, 
15  Johns.  147  ;  and  this  is  also  true  of  a 
promise  made  by  an  executor,  relative  to 
the  debt  of  his  testator,  which  affords  suf- 
ficient ground  for  an  action  against  the 
executor  de  bonis propriis :  Clark  v.  Herring, 
5  Binn.  33  ;  but  a  promise  by  an  adminis- 
trator will  not  take  a  case  out  of  the  stat- 
ute of  limitations :  Clark  v.  Maguire's 
Admrx.,  35  Penn.  St.  259  ;  so,  too,  where 
money  has  been  twice  paid,  through  failure 
to  produce  the  receipt  given  on  first  pay- 
ment, a  subsequent  promise  to  refund  will 
be  binding:  Bentley  v.  Morse,  14  Johns. 
468.  Another  class  of  cases  arises,  where 
a  promise  to  pay,  has  been  made  by  an  en- 
dorser of  a  promissory  note,  who  has 
knowledge  of  a  want  of  due  diligence  in 
the  holder  in  giving  him  notice  :  Breed  v. 


Hillhouse,  7  Conn.  523  ;  Hopkins  v.  Lis- 
well,  12  Mass.  52  ;  Thornton  v.  Winn,  12 
Wheat.  183.  The  consideration  of  a  moral 
obligation,  which  seems  to  have  given  rise 
to  more  embarrassment  than  any  other,  is, 
where  a  promise  has  been  made  to  pay  a 
debt,  subsequently  to  a  voluntary  release 
of  the  debt  by  the  creditor ;  some  of  the 
cases  are  in  favor  of  the  validity  of  such  a 
promise  :  Jamison  v.  Ludlow,  3  Ann.  (La.) 
493;  Doty  v.  Wilson,  14  Johns.  378; 
Willing  V.  Peters,  12  S.  &  R.  182  ;  McPher- 
son's  Admrs.  v.  Reeves,  2  Penna.  R.  521  : 
and  others,  against  it :  Warren  v.  Whitney 
et  al.,  24  Maine  561 ;  "Valentine  v.  Foster, 
1  Mete.  520  ;  Snevily  v.  Read,  1  Watts  396  ; 
the  law  is  probably,  upon  principle,  with 
the  former  cases  ;  for  of  the  latter,  Valen- 
tine V.  Foster,  was  a  promise  made  by  a 
■\yitness,  subsequent  to  a  release,  made  in 
order  to  qualify  him  for  giving  testimony, 
and  the  court  said  that  it  would  destroy 
all  confidence  in  evidence  given  under 
such  circumstances,  if  a  subsequent  prom- 
ise by  the  witness,  could  revive  his  lia- 
bility;  and  another,  Snevily  v.  Read,  was 
a  case  where  a  creditor  had  received  satis- 
faction of  his  debt,  by  taking  the  body  of 
his  debtor,  whom  he  subsequently  released 
from  arrest,  and  the  debtor  afterwards 
promised  to  pay  ;  which  was  held  not  suf- 
ficient to  support  an  action,  for  the  arrest 
had  been  a  satisfaction  of  the  prior  debt, 
and  consequently,  the  subsequent  promise 
was  without  consideration.  Where  the  act 
to  be  done,  is  one,  which  the  party  who 
subsequently  promises,  is  legally,  as  well 
as  morally,  bound  to  perform,  the  promise 
will  be  supported  ;  as  a  promise  to  main- 
tain a  bastard  child ;  or,  an  agreement  by 
an  executor,  to  pay  the  funeral  expenses  of 
his  testator ;  or  by  a  husband  to  pay  for 
necessaries  advanced  to  a  wife,  who  had 
become  a  charge  upon  a  parish,  and  the 
same  is  true  of  like  examples :  Hargrove 
et  al.,  Exrs.,  v.  Freeman,  12  Ga.  342  ;  Car- 


76  OF   CHOSES   IN   ACTION. 

tained  in  tl.c  Bankruptcy  Act,  1861 ;  but  by  the  Bankruptcy  Act,  1869, 
where  a  debtor  shall  be  iuljudieatcd  a  bankrupt,  no  creditor  to  whom  the 
bankrupt  is  indebted  in  respect  to  any  debt  provable  under  the  bank- 
ruptcy shall  have  any  remedy  against  the  property  or  person  of  the  bank- 
rupt in  respect  of  such  debt  except  in  manner  directed  by  that  act.(m) 
So  a  simple  contract  debt,  which  would  otherwise  have  been  barred  by 
the  Statute  of  Limitations,(w)  from  having  been  incurred  upwards  of  six 
years,  may  be  revived  by  a  subsequent  promise  to  pay,  or  even 
E*"^*^]  i)y  an  unconditional  *acknowledgment  of  the  debt;(o)  but  by 
modern  statutes  .such  promise  or  acknowledgment  must  be  made  or  con- 
tained by  or  in  some  writing,  to  be  signed  by  the  party  chargeable 
thereby,  or  by  his  agent. (jj>)  And  in  like  manner  a  debt  incurred  or 
contract  made  by  a  person  during  infancy  and  voidable  on  that  account, 
may  be  confirmed  by  an  express  promise  or  ratification  made  when  of 
full  age  •,{q)  although  such  a  promise  or  ratification  must  now,  by  one  of 
the  statutes  just  mentioned,(r)  be  made  by  some  writing  signed  by  the 
party  to  be  charged  therewith. 

By  the  ancient  common  law,  every  legal  instrument  in  writing  was  a 
deed  sealed  and  delivered  ;(s)  and  in  accordance  with  this  circumstance, 
contracts  are,  as  we  have  seen,(<)  Aow' divided  in  law  into  two  kinds  only, 
namely,  parol  (that  is  verbal)  or  smple  contracts,  and  special  contracts 
made  by  deed.     But  as  the  art  of  writing  became  general,  many  parol 

(m)  Stat.  24  &  25  Vict.  c.  134,  s.  164;  Stat.  32  &  33  Vict.  c.  83,  s.  12. 

(n)  Stat.  21  Jac.  I.  c.  16,  s.  3. 

(o)  Bac.  Abr.  tit.  Limitations  of  Actions  (E.)  ;  Prance  v.  Sympson,  1  Kay  678;  Sid- 
well  V.  Mason,  2  H.  &  N.  306-310  ;  Holmes  v.  Mackrell,  3  C.  B.  N.  S.  789  (E.  C.  L.  R. 
vol.  91) ;  Cornforth  v.  Smitliard,  5  H.  &  M.  13  ;  Francis  v.  Hawkesley,  1  E.  &  E.  1052 
(E.  C.  L.  R.  vol.  102). 

(p)  Stat.  9  Geo.  IV.  c.  14,  s.  1,  called  Lord  Tenterden's  Act;  19  &  20  Vict.  c.  97, 
s.  13. 

{q)  Bac.  Abr.  tit.  Infancy  and  Age  (I)  8;  Williams  v.  Moor,  11  M.  &  "W.  256- 
263;  Harris  v.  Wall,  1  Ex.  Rep.  122. 

(r)  Stat.  9  Geo.  IV.  c.  14,  s,  5. 

(s)  See  Principles  of  the  Law  of  Real  Property  118,  2d  ed.  ;  123,  3d  &  4th  eds. ;  128, 
5th  ed.  ;   134,  6th  ed.  ;  137,  7th  ed. ;   144,  8th  ed. 

(<)  Ante,  p.  72. 

son  V.  Clark,  1  Scam.  114.     Inhabitants  of  to  perform  a  certain  act,  in  such  cases  a3 

Alna  V.  Plummer,  4  Greenl.  258  ;   Hanover  have   been  just  stated,  executes  it,  it  will 

V.    Turner,    14    Mass.    227;    Hapgood    v.  give  ground  for  the  implication  of  a  prom- 

Houghton,   Exr.,  10   Pick.   154;  Shenk  v.  ise  ;  but  quite  the  contrary:  Salsbury  v. 

Mingle,   13  S.  &   R.  29;  Allen  v.  Davison,  Philadelphia,  44  Penn.  St.  303;  Duffy  v. 

16  Ind.  416  ;  but  it  does  not  follow,  that  if  Duffy,  Id.  399  ;  Lynn  v.  Lynn,  29  Id.  369; 

the  party  who  is  legally  and  morally  bound  Musser  v.  Ferguson,  55  Id.  478. 


OF   CONTRACTS.  77 

contracts  were,  for  greater  certainty,  put  into  writing,  though  not  made 
by  deed.  And  by  some  statutes  of  modern  times,  writing  is  required  to 
most  simple  contracts  respecting  matters  of  importance.  These  statutes 
we  shall  now  proceed  to  notice,  premising  that  in  all  cases  where  writing 
is  by  any  statute  made  necessary  to  a  contract,  the  contract  is  still  a 
paroP  one,  though  evidenced  by  the  writing  ;(u)  but  when  a  contract  is 
made  by  deed,  *the  deed  itself  is  the  contract. (x)  The  first  and  r:^,<^Q-] 
most  important  statute  then,  by  which  writing  is  required  to 
many  agreements,  is  the  Statute  of  Frauds,(?/)  which  enacts  in  its  fourth 
section  that  no  action  shall  be  brought  whereby  to  charge  any  executor 
or  administrator  upon  any  special  promise  to  answer  damages  out  of  his 
own  estate,  or  whereby  to  charge  the  defendant  upon  any  special  pro- 
mise to  answer  for  the  debt,  default  or  miscarriage  of  another  person;  or 
to  charge  any  person  upon  any  agreement  made  upon  consideration  of 
marriage;  or  upon  any  contract  or  sale  of  lands,  tenements  or  heredita- 
ments, or  any  interest  in  or  concerning  them ;  or  upon  any  agreement 
that  is  not  to  be  performed  within  the  space  of  one  year  from  the  mak- 
ing thereof;  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  otlier  person  there- 
unto by  him  lawfully  authorized.^     This  enactment,  it  Avill  be  observed, 

{u)  Sugd.  Vend,  and  Pur.  115,  13th  ed. 

(x)  Dyer  305  a;  Byron  v.  Byron,  Cro.  Eliz.  472  ;   1  Wms.  Saund.  274  a,  n.  (3). 

{y)   29  Car.  II.  c.  3. 


1  The  word  parol  is  generallj^  a  cause  of  agreement  made  upon  consideration  of 
much  confusion  to  students,  particularly  marria<;e  ;  (4)  or  upon  any  contract  or  sale 
in  its  application  to  written  contracts  not  of  lands,  tenements,  or  hereditaments,  or, 
under  seal  ;  a  parol  contract,  legally  de-  any  interest  in  or  concerning  them  ;  (5)  or 
fined,  is  a  contract  made  either  verbally,  upon  any  agreement,  that  is  riot  to  be  per- 
or  in  writing  not  under  seal,  as  distin-  formed  within  the  space  of  one  year  from 
guished  from  those  which  are  under  seal,  the  making  thereof;  (6)  unless  the  agree- 
bearing  the  name  of  deeds  or  specialties,  ment  upon   which    such    action    shall    be 

2  The  4th  section  of  the  Statute  of  brought,  or  same  memorandum  or  note 
Frauds,  29  Car.  II.  c.  3,  is  in  the  following  thereof,  shall,  be  in  writing,  and  signed  by 
words  :  "And  be  it  further  enacted  by  the  the  party  ta  be  charged  therewith,  or 
authority  aforesaid.  That  from  and  after,"  some  other  person  thereunto  by  him. law- 
Ac,  "  no  action  shall  be  brought,  whereby  fully  authorized." 

to  charge  any  executor  or   administrator.         The  aboy.e  section  is  in  force  in  Florida, 

upon    any    special    promise,    to     answer  Georgia,  Maine,  Massachusetts,  Maryland, 

damages    out  of  his    own    estate;    (2)    or  New  Jersey,  Ohio,  Vermont,  and  Virginia, 

whereby  to    charge   the   defendant,   upon  by  legislative  adoption  ;  and  its  provisions 

any  special  promise,  to  answer  for  the  debt,  liave  been  received  and  acknowledged  by 

default,  or  miscarriage  of  another  person  ;.  nearly  all  the  other  states.     By  th.e  enact- 

(3)   or  to   charge    any   person    upon    any  ment    of    the    legislatures    of    Alabama, 
7 


78 


OF    CIIOSES    IN    ACTION. 


does  not  give  to  \vriting  any  validity  which  it  did  not  possess  before.     A 
written  promise   made  since  this  statute,  without  any  consideration,  is 


Kentucky,  Mississippi,  and  Tennessee,  the 
words  "  or  make  any  lease  thereof,  for  a 
longer  term  than  one  year,"  have  been  in- 
serted in  place  of,  "or  any  interest  in  or 
concerning  them."     In    New    Hampshire, 
the  words  "  or  any  interest  in  or  concern- 
ing them,"  are  omitted.     In  Arkansas,  the 
words  "  or  to  charge  any  person  upon  any 
lease    of    lands,   tenements,    or   heredita- 
ments, for   a  longer  term  than  one  year," 
follow  the  words,  "  or  any  interest  in  or 
concerning   them."      In    North    Carolina, 
the  provisions  respecting  contracts  in  con- 
sideration of  marriage,   and  those   not  to 
be  performed  within  one  year,  are  omitted  ; 
but  in  Texas  these   are  retained,  and  it  is 
also  enacted  that  a   parol  lease  for  more 
than  one  year  shall  be  invalid.     The  Civil 
Code    of    Louisiana,   art.     2415,    without 
adopting  in   terms  the  Statute  of  Frauds, 
declares  generally,  that  all  verbal  sales  of 
immovable   property  shall  be  void.      By 
an  act  of  the  legislature  of  Delaware,  one 
person   shall   not   be  liable  to  answer  for 
the  debt  of  another,  of  twenty-five  dollars 
and  upwards,  unless  the  agreement  is  in 
writing, — nor  shall    one   be   liable  to  an- 
swer for  another's  debt  of  five  dollars,  and 
not  exceeding  twenty-five  dollars,  "unless 
such   promise   and     assumption   shall    be 
proved  by  the    oath  or  affirmation  of  one 
credible  witness,  or  some  memorandum  or 
note   in   writing    shall   be   signed   by  the 
party  to  be  charged  therewith."     In  Penn- 
sylvania, the   Statute  of  Frauds  is  not  in 
force  :  Anon.,  1  Dall.  1 ;  McDowell  v.  Oyer, 
21  Penn.  St.  417  ;  and  the  only  provisions 
on  the   subject  are  to  be  found  in  an  act 
entitled     •'  An     act     for      prevention     of 
frauds  and  perjuries,"  passed  March  21st, 
1772,  the  first  section  of  which  is  similar 
to   the  first  three   sections  of  the  Statute 
of  Charles   II.  ;  and  the  Acts  of  April  26, 
1855,   and   April  22,    1856  ;   the   former  of 
which  enacts,  that  no  executor  or  admin- 
istrator shall  be  liable,  upon  any  promise 
to  answer  out  of  his  own   estate,  nor  any 
person  liable   to   answer  for   the   debt  of 


another,  unless  the  said  promise  be  in 
writing,  or  the  debt  less  than  twenty 
dollars;  and  the  latter  enjoins,  that  all 
declarations  of  trusts,  and  assignments 
thereof  must  be  in  writing. 

The  following  are  some  of  the  decisions 
on   this   subject:   Blount  v.   Hawkins,    19 
Ala.  100  ;  Turner  v.  Fenner  et  al..  Id.  355  ; 
Brewer  v.  Brewer  et  al..  Id.  482  ;  Brainard 
V.  McDevilt,  21  Id.  119;  Martin  v.  Black's 
Exr.,  Id.  721  ;  Blakeney  v.  Ferguson  et  al., 
3  Eng.  260  ;  Allen  et  al.  v.  Jarvis,  29  Conn. 
38 ;    Marvin   v.  Foxon,   Id.   486  ;    Clark  v. 
Pendleton,  Id.  495  ;  Eaton  v.  Whittaker,  18 
Id.  222  ;  Russell  v.  Slade  et  al.,  12  Id  455  ; 
Downey  v.  Hotchkiss,  2  Day  225  ;  Scotien 
V.  Brown,  4   Harr.   324;   Dorman  v.  Bige- 
low,  Exr.,  1  Florida  281  ;  Cameron  et  al  v. 
Ward,  8  Ga.  245  ;  Hollingshead,  Admr.,  v. 
McKenzie,    Id.   457  ;    Thornton  v.  Heirs  of 
Henry,    2    Scam.    219;    Murphy    et   al.   v. 
Merry,  8  Blackf.  295  ;  Shirley  v.  Shirley,  7 
Id.  452  ;    Barickman  v.  Rhykendall,   6  Id. 
24;    Chandler  et  ux.  v.  Davidson,  Id.  367  ; 
Johnston  v.  Glancy  et  al.,  4  Id.  94 ;  Huck- 
leman,  Admr.,  v.  Miller  et  al.,  Id.  323  ;  Car- 
nutt  V.  Roberts,  11    B.  Mon.  42  ;  Tuttle  v. 
Swett  et  al.,  31  Maine  555  ;  Preble  v.  Bald- 
win, 6  Gush.  549;  Taney  v.  Bachtell,  9  Gill 
205;  Weed   et   al.   v.  Terry,  2   Doug.  344  ; 
Jones  V.   Palmer,    1    Id.   379;   Gothard  v. 
Flynn,  25  Miss.  58;  Baily  et  al.  v.  Trustees 
of  Mineral   School  District,    14   Mo.   499; 
Hart  V.  Rector   et  al.,  13  Id.  497;  Halsa  v. 
Halsa,  8  Id.  303  ;  Pitcher  v.  Wilson,  5  Id. 
46  ;   Greenleaf  et  al.  v.  Burbank,  13  N.  H. 
454;  Sampson  v.  Burnside,  Id.  265  ;  Drake 
V.Newton,   3   Zabr.    Ill;    Field    et   al.   v. 
Runk,  2  Id.  525;    Clark  v   Tucker  et  al.,  2 
Sandf.  S.    C.  157  ;    Wyman  v.   Smith,   Id. 
331;  Simms  i>.  Kilian,  12  Ired.  252  ;  Led- 
ford  V.  Ferrell's  Admr.  etal.,  Id.  .285  ;  Reed 
V.  Evans  et  al.,    17    Ohio    128  ;   Ewing  v. 
Tees,    1  Binn.  450  ;    Wilson  v.  Clark,  1  W. 
&  S.  554;   Boyer  v.  McCulloch,  3  Id.  429  ; 
Miller   v.    Hower,  2  Rawle    53  ;    Eckert  v. 
Eckert,  3  Penna.  R.  332  ;  Eckert  v.  Mace,  Id. 
364,  n.  ;   Galbraith   v.  Galbraith,    5  Watts 


OF    CONTRACTS.  78 

quite  as  much  nudum  pactum  as  it  would  have  been  before.(s)  The 
statute  merely  adds  a  further  requisite  to  the  validity  of  certain  contracts, 
namely,  that  they  shall,  besides  being  good  in  other  respects,  be  put  into 
"writing,  otherwise  no  action  shall  be  maintained  upon  them. (a) 

A  great  number  of  cases  have  been  decided  upon  the  above  section  of 
this  celebrated  statute.  One  of  the  *most  important  is  that  of  r^^n-i 
Wain  V.  Warlters,(6)  in  which  it  was  held  that  the  statute,  in  •-  -' 
requiring  the  agreement  to  be  in  writing,  required  that  the  consideration, 
which  is  part  of  the  agreement,  should  be  in  writing,  as  well  as  the 
promise  itself.  And  therefore  a  promise  in  writing  to  pay  the  debt  of  a 
third  person,  which  did  not  state  any  consideration,  was  held  to  give  no 
cause  of  action;  and  parol  evidence  of  a  consideration  was  not  allowed 
to  be  given.  This  case  was  followed  by  many  other  decisions  to  the  same 
effect.(c)  But  a  recent  statute  now  provides  that  no  special  promise  to 
answer  for  the  debt,  default  or  miscarriage  of  another  person,  beino-  in 
writing  and  duly  signed,  shall  be  invalid  to  support  an  action,  by  reason 
only  that  the  consideration  for  such  promise  does  not  appear  in  writing, 
or  by  necessary  inference  from  a  written  document.(c?)  The  phrase  in 
the  statute,  to  answer  for  the  debt,  default  or  miscarriage  of  another 
person,  means  to  answer  for  a  debt,  default  or  miscarriage /or  which  that 
other  remains  liable.{e)     Thus  Avhere  one  party  to  an  agreement  verbally 

(z)  See  Williams  on  Executors,  pt.  4,  bk.  2,  eh.  2,  sect.  2  ;  1  Wms.  Saund.  211, 
n.  (2). 

(a)  Agreements,  where  the  matter  thereof  is  of  the  value  of  51.,  or  upwards,  are, 
with  some  exceptions,  liable  to  a  stamp  duty  of  Gd ,  with  a  further  progressive  duty  of 
the  same  amount  for  every  €?itire  quantity  of  1080  words  beyond  the  first  1080  ;  stat. 
23  Vict.  15.' 

(6)  5  East  10  ;  2  Smith's  Leading  Cases  147. 

(c)  Saunders  v.  Wakefield,  4  B.  &  Aid.  595  (E.  C.  L.  R.  vol.  6) ;  Morley  v.  Boothby, 
3  Bing.  107  (E.  C.  L.  R.  vol.  11)  ;  Clancy  v.  Piggott,  2  Ad.  &  E.  473  (E.  C.  L.  R.  vol. 
29);  1  Smith's  Leading  Cases  136;  1  Wms.  Saund.  211,  n.  {d)  ;  Price  v.  Richardson, 
15  M.  &  W.  539. 

(d)  Stat.  19  &  20  Vict.  c.  97,  s.  3.  See  Holmes  v.  Mitchell,  7  C.  B.  N.  S.  361  (E.  C. 
L.  R.  vol.  97)  ;  Williams  v.  Lake,  2  E.  &  E.  349  (E.  C.  L.  R.  vol.  105). 

(c)  1  Wms.  Saund.  211  b,  a.  (2)  ;  1  Smith's  Leading  Cases  134  ;  Green  v.  Cresswell, 
10  Ad.  &  E.  453  (E.  C.  L.  R.  vol.  37)  ;  s.  c.  2  Per.  &  Dav.  430 ;  Cripps  v.  Hartnell,  Ex. 
Ch.  11  W.  R.  953  ;  10  Jur.  N.  S.  200. 


146  ;  Brawdy  v.  Brawdy,  7  Penn.  St.  16  ;  Exrs.  v.  Young,  34  Penn.  St.  60  ;. Alger  v. 
Taylor  v.  Drake,  4  Strob.  431  ;  Compton  v.  Scoville,  1  Gray  391  ;  Woodford  v.  Pater- 
Martin,  5  Rich.  14  ;  Elfe  v.  Gadsden,  2  Id.  son,  32  Barb.  630  ;  Hutchinson  v.  Hutchin- 
373;  Bowles  v.  Woodson,  6  Gratt.  88;  son,  46  Maine  154;  Easter  v.  White,  12 
Ware  v.  Stephenson,  10  Leigh  171  ;  Col-  Ohio  (N.  S.)  219. 
lins,  Admrx.  v.  Row,  Id.  114;  Warnick  v.  i  See  ante  p.  42,  u. 
Grosholz,    3   Grant's   Cases    234;   Kuns's 


79  OF    CIIOSES    IN   ACTION. 

promised  the  other,  that  in  consideration  of  his  discharging  from  custody 
a  third  person  whom  he  had  taken  in  execution  for  dcht,  he,  the  first 
party,  -would  pay  the  debt,  it  was  lield  that  action  might  well  be  brought 
on  this  promise,  although  it  was  not  put  in  writing.(/)     For  this  was 

not  a  promise  to  answer  for  *the  debt  of  another  person,  to  which 
l.^'^^^  that  other  remained  liable,  but  to  pay  a  debt  from  which  the  other 
was  discharged.  It  was  an  original  promise  to  pay  and  not  a  collateral 
promise  to  guarantee,  Avhich  is  the  meaning  in  the  statute  of  the  words 
"  answer  for."  The  words,  "  any  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof,"  have  been  held 
to  mean  an  agreement  which  appears  from  its  terms  incapable  of  per- 
formance within  the  year.  Thus  where  one  man  promised  another,  for 
one  fuinea,  to  give  him  a  certain  number  on  the  day  of  his  marriage,  it 
was  held  that  a  writing  was  unnecessary,  for  the  marriage  might  have 
happened  within  the  year.(</)  So  a  contract  by  A.  that  his  executor 
shall  pay  10,000?.,  need  not  be  in  writing  ;(/i)  for  the  death  of  A.  and 
payment  of  the  money  may  all  take  place  within  a  twelvemonth.  It  has 
also  been  held  that,  in  order  to  bring  an  agreement  within  this  clause  of 
the  statute,  so  as  to  render  writing  necessary,  both  parts  of  the  agree- 
ment must  be  such  as  are  not  to  be  performed  within  a  year  from  the 
making  thereof.  Thus  where  a  landlord  agreed  to  lay  out  501.  in  im- 
provements, in  consideration  of  the  tenant  undertaking  to  pay  him  5?.  a 
year  during  the  remainder  of  his  term  (of  which  several  years  were  un- 
expired), it  was  held  that  writing  was  unnecessary  ;(^■)  for  although 
the  tenant's  part  of  the  agreement  was  not  to  be  performed  within  a 
year,  the  landlord's  part  might  reasonably  have  been  so.  These 
decisions  have  considerably  narrowed  the  operations  of  the  statute,  and 
have  left  remaining  much  of  the  mischief  arising  from  reliance  on 
memory  only,  which  it  was  the  intention  of  the  statute  to  obviate,  by 

*requiring  written  evidence.(^)  The  last  clause  of  the  enactment 
L  J  has,  however,  received  a  very  liberal  construction.  The  words 
are  "  signed  by  the  party  to  be  charged  therewith,  or  some  other  person 
thereunto  by  him  lawfully  authorized."  And  it  has  been  held  that  any 
insertion  by  the  party  of  his  name  in  any  part  of  the  agreement  is  a 

(/)  Goodman  v.  Chase,  1  B.  &  Aid.  297.  See  also  Lane  v.  Burghart,  1  Q.  B.  933  (E. 
C.  L.  E.  vol.  41). 

(g)  Peter  i;.  Compton,  Skin.  353;  1  Smith's  Leading  Cases  142;  Souch  ?;.  Straw- 
bridge,  2  C.  B.  808  (E.  C.  L.  R.  vol.  52). 

(h)  Wells  V.  Horton,  4  Bing.  40  (E.  C.  L.  R.  vol.  13) ;  Ridley  v.  Ridley,  34  Beav.  478. 

(t)  Donellan  v.  Reid,  3  B.  &  Ad.  899  (E.  C.  L.  R.  vol.  23) ;  Cherry  v.  Heming,  4  Ex. 
Rep.  631. 

(A-)  See  i  Smith's  Leading  Cases  144  et  seq. 


OF    CONTRACTS.  81 

suflBcient  signing  within  the  statute, (?)  provided  the  name  be  inserted  in 
such  a  manner  as  to  have  the  effect  of  authenticating  the  instrument  ;{m) 
and  it  is  not  necessary  that  both  parties  should  sign  the  agreement.  The 
whole  of  the  agreement  must  be  contained  in-  the  writing,  either  ex- 
pressly or  by  reference  to  some  other  document,  but  the  writing  is 
required  by  the  statute  to  be  signed  only  by  the  party  to  be  charged.(w) 
And  as  a  "  memorandum  or  note  "  of  the  agreement  is  allowed,  a  writing 
sufficient  to  satisfy  the  statute  may  often  be  made  out  from  letters  writ- 
ten by  the  party,(o)  or  from  a  written  ofter,  accepted,  without  any  varia- 
tion,(p)  before  the  party  offering  has  exercised  his  right  of  retracting  ;(g) 
and  when  correspondence  is  carried  on  by  means  of  the  post,  an  offer  is 
held  to  be  accepted  from  the  moment  that  a  letter  accepting  the  offer  is 
put  into  the  post,  although  it  may  never  reach  its  destination. (r) 

*The  seventeenth  section  of  the  Statute  of  Frauds,  which  re-  i-x^qon 
lates  to  contracts  for  the  sale  of  goods,  wares  and  merchandise  '-''-' 
for  the  price  of  lOZ.  or  upwards,  has  been  already  noticed,(s)  together 
with  the  clause  in  the  statute  of  Geo.  IV.,  next  noticed,^  called  Lord 
Tenterden's  Act,  by  which  this  enactment  has  been  extended  and  ex- 
plained. (<) 

The  next  statute  which  requires  our  notice  is  intituled  "  An  Act  for 
rendering  a  written  Memorandum  necessary  to  the  Validity  of  certain 
Promises  and  Engagements,"  and  is  commonly  called  Lord  Tenterden's 
Act.(w)  By  this  statute  no  acknowledgment  or  promise  by  words  only 
can  take  any  case  of  simple  contract  out  of  the  operation  of  the  Statute 
of  Limitations,(a;)  or  deprive  any  party  of  the  benefit  thereof,  unless 

(I)  Ogilvie  V.  Foljambe,  3  Meriv.  62. 

(m)  Stokes  v.  Moor,  1  Cox  219  ;  Selby  v.  Selby,  3  Meriv.  4,  6. 

(n)  Laythoarp  v.  Bryant,  2  Bing.  N.  C.  735,  742  (E.  C.  L.  R.  vol.  29).  See  Sugd. 
Vend.  &  Pur.  c.  4,  ss.  3,  4,  102  et  seq.,  13th  edit. 

(o)  Owen  V.  Thomas,  3  Myl.  &  K.  353. 

(j9)  Holland  v.  Eyre,  2  Sim.  &  Stu.  194;  Gibbons  v.  North-Eastern  Metropolitan 
Asylum  District,  11  Beav.  1. 

(q)  Routledge  v.  Grant,  4  Bing.  653  (E.  C.  L.  R.  vol.  13)  ;  s.  c.  1  Moo.  &  P.  717; 
Gilkes  V.  Leonino,  4  C.  B.  N.  S.  485  (E.  C.  L.  R.  vol.  93)  ;  Hebb's  Case,  M.  R.,  Law 
Rep.,  4  Eq.  9. 

(r)  Dunlop  v.  Higgins,  1  H.  of  L.  C.  481  ;  Duncan  v.  Topham,  8  C.  B.  225  (E.  C.  L. 
R.  vol.  65), 

(s)  Ante,  p.  40. 

{t)  Stat.  9  Geo.  IV.  c.  14,  s.  7  ;    ante,  p.  40. 

(m)  Stat.  9  Geo.  IV.  c.  14.  (z)  Stat.  21  Jac.  I.  c.  16,  s.  3. 

^  See  ante,  p.  40,  note. 


82  OF    CHOSES    IN    ACTION. 

suclr  acknowledgment  or  promise  shall  be  made  or  contained  by  or  in 
some  Avriting  to   be   signed  by  the   party  chargeable  thereby.(i/)     The 
effect  of  such  a  promise  has  already  been  referred  to.{z)     The  statute 
makes  no  mention  of  any  signature  by  an  agent ;  brt  by  a  recent  statute 
the  signature  of  an  agent  has  been  rendered  sufficient.(a)     And  no  joint 
contractor  is  to  lose  the  benefit  of  the  Statute  of  Limitations  by  reason 
only  of  any  written  acknowledgment  or  promise  made  and  signed  by  any 
other  joint  contractor ;  but  nothing  therein  contained  is  to  alter,  or  take 
away,  or  lessen  the  effect  of  any  payment  of  any  principal  or  interest 
r*QQi    ™»^^e  ^y  ^^y  person  whatsoever.(?>)    However,  no  endorsement  *o/ 
^       -^    memorandum  of  any  payment  written  or  made  upon  any  promis- 
sory note,  bill  of  exchange  or  other  writing,  by  or  on  behalf  of  the  part; 
to  whom  such  payment  shall  be  made,  shall  be  deemed  sufficient  proof  o. 
such  payment,  so  as  to  take  the  case  out  of  the  operation  of  the  Statute 
of  Limitations.(c)     And  by  a  recent  statute  payment  of  any  principal  or 
interest  by  a  co-contractor  or  co-debtor  will  not  deprive  a  debtor  of  the 
benefit  of  the  Statute  of  Limitations.fcZ)     Lord  Tenterden's  Act  further 
enacts,  as  has  been  already  mentioned,(e)  that  no  action  shall  be  main- 
tained whereby  to  charge  any  person  upon  any  promise  made  after  full 
age  to  pay  any  debt  contracted  during  infancy,  or  upon  any  ratification 
after  full  age  of  any  promise  or  simple  contract  made  during  infancy, 
unless  such  promise  or  ratification  shall  be  made  by  some  writing  signed 
by  the  party  to  be  charged  therewith.     And  it  is  further  enacted,(/) 
that  no  action  shall  be  brought  whereby  to  charge  any  person  upon  or 
by  reason  of  any  representation  or  assurance  made  or  given  concerning 
or  relating  to  the  character,  conduct,  credit,  ability,  trade  or  dealings  of 
any  other  person,  to  the  intent  or  purpose  that  such  other  person  may 
obtain  credit,  money  or  goods  upon,  unless  such  representation  or  assur- 
ance be  made  in  writing  signed  by  the  party  to  be  charged  therewith. 
There  appears  to  be  some  error  in  the  word  ^^ upon"  in  this  enactment, 
which,  as  it  stands,  is  superfluous.((/)    And  it  has  been  doubted  whether 

(y)  See  Lechmere  v.  Fletcher,  1  C.  &  M.  623 ;  Bird  v.  Gammon,  3  Bing.  N.  C.  883 
(E.  C.  L.  R.  vol.  32) ;  Cheslyn  v.  Dalbj-,  4  You.  &  Coll.  238. 

(z)  Ante,  p.  76.  (a)  Stat.  19  &  20  Vict.  c.  91,  s.  13. 

(6)  Stat.  9  Geo.  IV.  c.  14,  s.  1  ;  Whinman  i-.  Kynman,  1  Ex.  Rep.  118;  Cleave  v. 
Jones,  6  Ex.  Rep.  513  ;  Bamfield  v.  Tupper,  7  Ex.  Rep.  27  ;  Fordham  v.  Wallis,  10  Hare 
217  ;  Nash  v.  Hodgson,  1  Kay  650 ;  Edwards  v.  Janes,  1  Kay  &  John.  534. 

(c)  Sect.  3. 

{d)  Stat.  19  &.  20  Vict.  c.  97,  s  14,  not  retrospective;  Jackson  v.  Woolley,  8  E.  & 
B    784  (E.  C.  L.  R.  vol.  92). 

(e)  Stat.  9  Geo.  IV.  c.  14,  s.  5  ;   ante,  p.  77. 

(/)  Stat.  9  Geo.  IV.  c.  14,  s.  6.  (^r)  See  1  M.  &  W.  104,  123. 


OF    CONTRACTS.  83 

a  representation  made  to  a  purchaser  by  the  trustee  of  some  property, 
that  the  property  Avas  encumbered  to  a  less  extent  than  was  actually  the 
case,  was  a  representation  concerning  the  ability  of  the  vendor  rjcoj^-i 
*within  the  meaning  of  the  statute. (/i)  The  better  opinion  seems 
to  be,  that  such  a  representation  is  within  the  statute,  and  ought,  conse- 
quently, to  be  obtained  in  writing. 

In  addition  to  those  contracts  which  by  statute  are  required  to  be  in 
writing,  there  exists  a  peculiar  class  of  contracts,  which  in  their  nature 
are  expressed  in  writing,  and  for  which  a  consideration  is  presumed  to 
have  been  given  till  the  contrary  is  proved. (z)  These  are  bills  of  ex- 
change and  promissory  notes. (A;)  A  bill  of  exchange  is  a  written  order 
from  one  person  to  another-  to  pay  to  a  third  person,  or  to  his  order,  or 
to  the  bearer,  a  certain  sum  of  money.  The  person  making  the  order  is 
called  the  drawer,  the  person  on  whom  it  is  made  the  drawee,  and  the 
person  to  whom  the  money  is  payable  the  payee.  The  bill  is  sometimes 
made  payable  to  the  drawer  himself,  or  to  his  order,  or  to  him  or  bearer. 
If  the  person  on  whom  the  bill  is  drawn  undertakes  to  pay  it,  he  writes 
on  it  "the  word  "accepted,"*  with  his  signature,  and  is  then  called  the 
acceptor.  A  promissory  note,  or  note  of  hand,  as  it  is  sometimes  called, 
is  a  written  promise  from  one  person  to  pay  to  another,  or  to  his  order, 
or  to  bearer,  a  certain  sum  of  money.  The  person  making  the  promise 
is  called  the  maker  of  the  note.  No  negotiable  or  transferable  bill  or 
note  can  be  lawfully  drawn  or  made  for  any  sum  under  20s.  ;(Z)"  but  any 

(A)  See  Lyde  v.  Barnard,  1  M.  &  W.  101  ;  Swann  v.  Phillips,  8  Ad.  &  E.  457  (E.  C.  L. 
R.  vol.  35) ;  Devaux  v.  Steinkeller,  6  Bing.  N.  C.  84  (E.  C.  L.  R.  vol.  37). 
(j)  See  Mills  v.  Barber,  1  M.  &  W.  425. 
\k)  See  Byles  on  Bills,  and  Bayley  on  Bills. 
\l)  Stat.  48  Geo.  III.  c.  88,  s.  2. 

1  The  word  "accepted,"  should,  in  ac-  Maine,  "if  a  bill  of  exchange  be  drawn, 

cordance  with  the  custom  of  naerchants,  be  accepted  or  endorsed,  .  .  .  for   one  hun- 

written  across  the  face  of  the  bill,  over  the  dred  dollars  or  more,  and  payable  in  "  the 

signature  of  the  acceptor.  "  State,  at  a  place  seventy-five  miles  dis- 

*  Very  few  restrictions  of  this  nature  ex-  tant    from    the    place    where    drawn,    the 

ist  within  the  United  States,  and  even  in  damages  against  theacceptor,  drawer,  or 

those  states  where  provisions  of  this  kind  endorser,  over  and  above  the  contents  of 

are  in  force,  they  have  a  view  rather  to  the  bill  and  interest,  shall  be  one  per  cent, 

obtaining  a  protest,  or  recovering  damages,  on    its    amount:"    Revis.  Stat,  of  Maine 

than  to  an  absolute  prohibition.     Thus,  in  (1857),  pp.  519,  520;  and  a  similar  provi- 

Alabama,  "  every  bill  of  exchange,  of  the  sion  exists  in  Massachusetts  :  Revis.  Stats. 

sum  of  $20  and  upwards,    drawn    in,   or  of  Mass.  (1860),  p.  294.     By  the  laws  of 

dated  at,  or  from  any  place  in  "  the  State,  New  Jersey,  bills  of  exchange  drawn  with- 

may  be  protested   for  non-acceptance,  or  in  the  State,  upon  any  person  within  the 

non-payment:  Clay's  Alaba.  Dig.  381.    In  State,  for  eight  dollars  or  upwards,  may 


84 


OF    CHOSES    IN   ACTION. 


person  may  now  draw  upon  his  banker,  who  shall  bon^  fide  hold  money 
for  his  use,  any  draft  or  order  for  the  payment  to  the  bearer,  or  to 
order,  on  demand,  of  any  sum  of  money  less  than  20s.{m)  Bills  and 
r*QCT  notes  *under  51.  cannot  be  made  payable  to  beaver  on  demand, 
'-       -'    and  Avere   formerly    subject  to  other   stringent    restrictions,(w)  ^ 

(m)  Stat.  23  &  24  Vict.  c.  Ill,  s.  19. 

(m)  Stat.  17  Geo.  III.  c.  30,  7  Geo.  IV.  c.  G,  s.  4. 


be  protested  for  non-acceptance  or  non- 
payment :  Nixon's  Dig.  Laws  N.  J.  (1868), 
p.  770.  Two  of  the  states,  Massacliusetts 
and  South  Carolina,  prohibit  the  negotia- 
ting of  notes  under  a  certain  sum,  the  first 
limiting  them  to  five  dollars,  under  a  pen- 
alty of  fifty  dollars  ;  and  the  latter  to  one 
dollar,  under  a  penalty  often  dollars  ;  the 
prohibition  in  South  Carolina,  being  also 
extended  to  bills  of  exchange  :  Revis.  Stats. 
of  Mass.  (18C0),p.  810;  Stats,  of  S.  C,  vol. 
6,  p.  34. 

The  only  other  enactments  in  the 
United  States  having  any  reference  to  this 
point,  are  those  designed  to  prevent  the 
issuing  of  notes,  intended  to  perform  the 
functions  of  currency,  by  others  than  cor- 
porations, specially  created  by  authority 
of  law,  with  this  power.  Thus,  in  Penn- 
sylvania, by  the  2d  sec.  of  the  Act  of 
March  22,  1817,  "No  incorporated  body, 
public  officer,  association  or  partnership, 
or  private  individual,  other  than  such  as 
have  been  expressly  incorporated  or  es- 
tablished for  the  purpose  of  banking,  shall 
make,  issue,  reissue  or  circulate,  any  pro- 
missory note,  ticket,  or  engagement  of 
credit  in  the  nature  of  a  bank  note,  of  any 
denomination  or  amount  whatsoever,"  &c. : 
Purd.  Dig.  (1861),  p.  94,  sec.  59.  Similar 
provisions  are  in  operation  in  many  of  the 
other  states  :  Revis.  Stats,  of  N.  Y.,  vol.  2, 
p.  981;  Revis-  Stats,  of  Mass.  (18G0),  p. 
810;  Revis.  Stats,  of  Ohio  (1860),  vol.  1, 
pp.  152,  153. 

*  In  connection  with  the  subject  of 
negotiable  or  transferable  bills  or  notes, 
the  comparatively  recent  English  case  of 
Bellamy  et  al.  v.  Majoribanks  et  al.,  7  Ex. 
389,  relative  to  crossed  checks,  may  not 
be  entirely  devoid  of  interest.  The  plain- 
tiffs in  this  case,  "  were  trustees  of  a  gen- 


tleman named  Frank  ;  .  .  .  thej-  had  opened 
an  account  with  the  defendants,  Messrs. 
Coutts  &  Co.,  for  the  purpose  of  the  trust. 
A  suit  was  pending  in  the  Court  of  Chan- 
cery with  reference  to  the  trust,  in  which 
Mr.  Triston  acted  as  solicitor  for  the 
plaintiffs.  The  other  parties  to  the  suit 
were  the  next  of  kin  of  Mr.  Frank,  and 
a  Mr.  Geary  acted  as  solicitor  for  them.  In 
June,  1845,  Mr.  Geary  brought  to  Mr. 
Triston  a  check  upon  Messrs.  Coutts,  writ- 
ten out  by  him,  for  2596Z.  17s.,  to  be  signed 
by  the  plaintiff's.  It  was,  when  delivered 
to  Mr.  Triston,  in  the  common  form.  Mr. 
Triston  sent  the  check  to  the  plaintiff,  Mr. 
Bellamy,  at  Brighton,  who  returned  it 
signed,  with  the  following  addition  in  his 
own  handwriting,  namely,  at  the  end  of 
the  body  of  the  check,  the  words  :  '  Gen- 
eral unpaid  costs  account,'  and  crossed  as 
follows,  '  Bank  of  England,  for  account  of 
Accountant-General.'  Mr.  Triston  then 
sent  it  to  the  other  trustee  (the  plaintiff, 
Mr.  Foster),  to  be  signed  by  him,  aud  hav- 
ing received  it  back,  delivered  it  to  Geary. 
In  point  of  fact,  the  department  of  the 
Bank  of  England,  in  which  the  business  of 
the  Accountant-General  is  conducted, 
wou.ld  not  have  received  this  check,  it 
being  the  rule  not  to  receive  any,  except 
one  drawn  on  the  Bank  of  England  itself; 
and  this  rule  is  well  known  among  the 
London  bankers  Upon  the  day  on  which 
Geary  received  the  check,  he  struck  out 
the  crossing  made  by  Mr.  Bellamy,  by 
running  a  pen  through  it,  leaving  it,  how- 
ever, perfectly  legible,  and  crossed  the 
check  a  second  time,  with  the  name  of 
Messrs.  Gossling  &  Co.,  his  own  bankers, 
and  paid  it  into  their  bank,  to  the  credit 
of  his  own  account.  Upon  the  following 
day,  the  clerk  of  Messrs.  Gossling  present- 


OF    CONTRACTS. 


85 


which  were  repealed  for  three  years  from  the  28th  of  July,  1863,  and 
until  the  end  of  the  then  next  session  of  Parliament  ;(o)  and  the  repeal 
has  been  since  regularly  extended  from  year  to  year.(p)  Bills  and 
notes  payable  to  bearer  on  demand  are  also  prohibited  from  being  issued 
by  bankers,  except  by  the  banks  and  under  the  restrictions  mentioned  in 
the  act  passed  to  regulate  the  issue  of  bank  notes.(9')  Bills  or  notes  pay- 
able to  A.  B.  or  order  are  transferable  by  a  written  order  endorsed 

(o)  Stat.  26  &  21  Vict.  c.  105. 

(/>)  Last  extended  by  stat.  32  &  33  Vict.  c.  85. 

{q)   Stat.  7  &  8  Vict.  c.  32,  ss.  10,  11. 


ed  it  for  payment  at  Messrs.  Coutts  &  Co., 
who  paid  it,  and  charged  it  to  the  debit  of 
the  plaintiffs'  account.  The  money  was 
placed  by  Messrs.  Gossling  to  the  credit  of 
Geary,  in  his  own  account  with  them.  He 
never  paid  the  money  to  the  Accountant- 
General,  and  the  plaintiffs  were  obliged 
to  make  it  good.  The  following  is  a  copy 
of  the  check,  as  produced  at  the  trial." 

I 
London,      \\     June  23,  1845. 

Messrs.  Coutts  Jr  V-      &  Co. 

Pay  to  Edward^!  IJ  c5 Bryant  Geary,  or 
Bearer,  two  thou-^}  <>  '^sand  five  hundred 
and  ninety-sis"..  .|  c pounds, seventeen 
shillings  (Generah; 
li 


count 
£2596 


17  :  0. 


:  unpaid  Costs   Ac- 

Thos.  C.  Bellamy, 
Chas.  J.  Foster. 


Parke,  B.  "Where  a  check  is  crossed, 
bankers  generally  refuse  to  pay  it  to  any 
one  except  a  banker ;  and  if  they  do  pay 
it  to  a  person  not  a  banker,  they  consider 
that  they  do  it  at  their  peril,  in  the  event 
of  the  party,  to  whom  the  payment  was 
made,  not  being  entitled  to  receive  it. 
That  the  object  is  to  secure  the  payment, 
not  to  any  particular  banker,  but  to  a 
banker,  in  order  that  it  may  be  easily 
traced,  for  whose  use  the  money  was  re- 
ceived ;  and  that  it  was  not  intended 
thereby,  to  at  all  restrict  the  negotiability 
or  circulation  of  the  check,  but  merely  to 
compel  the  holder  to  present  it  through  a 
quarter  of  known  respectability  and  credit. 
We  are  strongly  inclined  to  think  that,  on 


a  full  inquiry,  the  usage  will  turn  out  to 
be  no  more  than  this  ;  and  considering  the 
custom  in  this  point  of  view,  the  crossing 
is  a  mere  memorandum  on  the  face  of  the 
check,  and  forms  no  part  of  the  instru- 
ment itself,  and  in  no  way  alters  its  effect. 
There  can  be  no  doubt  that  such  a  usage 
is  highly  beneficial  to  the  public.  These 
instruments  are,  in  their  essential  charac- 
ter, payable  to  bearer,  they  are  in  many 

respects  treated  as  bank  notes It 

is  manifestly,  therefore,  a  great  safeguard 
and  protection  to  the  real  owner,  that 
there  should  exist  the  means  of  tracing 
and  ascertaining,  for  whose  use  the  money 
paid  on  the  check  is  received,  and  to 
whom  the  money  actually  goes ;  and  the 
payment  through  a  banker  secures  this 
object.  .  .  .  We  think  there  is  no  legal 
objection  to  the  custom,  if  thus  limited, 
and  understood,  upon  the  ground  of  its 
being  repugnant  to  the  essential  quality 
of  a  check,  namely,  its  negotiability  by 
delivery.  There  is  no  obligation  upon 
any  one  to  receive  payment  by  a  check, 
whether  it  be  crossed  or  not  crossed  ;  but 
if  a  man  receive  a  crossed  check,  he  seems 
to  us,  not  indeed  to  incur  the  obligation 
of  presenting  it  for  payment  through  a 
banker,  as  a  condition  precedent,  but  he 
ought  not  to  complain  if  the  drawee  does 
not  pay  without  previous  inquiry.  There 
is  really  no  restriction  upon  its  negotia- 
bility ;  but  it  is,  in  our  opinion,  a  reasona- 
ble and  lawful  practice  and  usage,  in  or- 
der to  secure,  as  far  as  possible,  payment 
of  checks  to  honest  and  bona  fide  holders." 


85  OF   CH0SE3    IN    ACTION. 

thereon  by  A.  B.     The  mere  signature  by  A.  B.  of  his  name  on  the 
back,  followed  by  the  delivery  of  the  bill  or  note,(r)  is  however  sufficient 
for  this  purpose.     This  is  called  an  endorsement  in  blank  ;  and  after 
such   an  endorsement,  the  bill  or  note,  together  with   the  right   to  sue 
upon  it,  may  be  transferred  by  mere  delivery.(s)     Any  holder  of  the  bill 
may,  consequently,  after  such  an  endorsement,  enforce  payment  to  him- 
self.    The  endorsement  may,  however,  be  special,  as  "  Pay  C.  D.  or 
order,  A.  B."     And  in  this  case  the  bill  or  note,  in  order  to  become 
transferable,  must  be  endorsed  by  C.  D.     But  if  a  bill  be  once  endorsed 
in  blank,  it  will  always  be  payable  to  the  bearer  by  any  of  the  parties 
thereto,  although  it  may  subsequently  be  specially  endorsed  ;   but  the 
special  endorser  will  not  be  liable  to  the  bearer  without  the  endorsement 
of  the  person  to  Avhom  he  has  specially  endorsed  it.(^)^     With  regard  to 
bankers,  an  act  of  the  present  reign   provides   that  any  draft  or   order 
„    drawn  upon  a  banker  for  a  sum  *of  money  payable  to  order  on 
^       -•    demand  which  shall,  when  presented  for  payment,  purport  to  be 
endorsed  by  the  person  to  whom  the  same  shall  be  drawn  payable,  shall 
be  a  sufficient  authority  to  such  banker  to  pay  the  amount  of  such  draft 
or  order  to  the  bearer  thereof.(M)     A  bill  or  note  payable  to  bearer  is 
transferable  by  mere  delivery  without  any  endorsement. 

The  eifect  of  accepting  a  bill,  or  making  a  promissory  note,  is  to  ren- 
der the  acceptor  or  maker  primarily  liable  to  pay  the  same  to  the  per- 
son entitled  to  require  payment.  The  effect  of  drawing  a  bill  is  to  make 
the  drawer  liable  to  payment,  if  the  acceptor  make  default.  But  in 
order  to  charge  the  drawer  of  a  foreign  bill,  it  must,  by  the  custom  of 
merchants,  be  protested  by  a  notary  public. (v)  This  protest  is  a  declara- 
tion by  him  in  due  form  that  payment  has  been  demanded  and  refused. 
A  protest,  however,  is  unnecessary  for  an  inland  bill  or  promissory 
note.(a:)  The  effect  of  endorsing  a  bill  or  note  is  to  make  the  endorser 
also  liable  to  payment,  if  the  acceptor  of  the  bill  or  maker  of  the  note 
should  make  default.  The  endorsement  operates  as  against  the  endorser 
as  a  new  drawing  of  the  bill  by  him.(?/)     An   endorsement,  however, 

(r)  Bromage  v.  Lloyd,  1  Ex.  Rep.  32  (.?)  Peacock  v.  Rhodes,  2  Doug.  333. 

(t)  Smith  V.  Clarke,  1  Peake  295  ;  Walter  v.  Macdonald,  2  Ex.  Rep.  527 
(m)  Stat.  16  k  17  Vict.  c.  59,  s.  19.  {v)   Gale  v.  Walsh,  5  Term  Rep.  239. 

(x)  Windle  v.  Andrews,  2  B.  &  Aid.  696.       (?/)  Penny  v.  Innes,  1  C,  M.  &  R.  441. 

1  But  the  holder  of  a  note  endorsed  in  Mon.  572;   Webster  v.  Cobb,    17   111.  459; 

blank,  may   fill   it  up   with   any   contract  Watkins    v.    Kirkpatrick,    2    Dutch.    84; 

consistent  with   the   character  of  an  en-  Becker  v.  Levy,  2  Am.  L.  Reg.  444 ;  West 

dorsement:  Byles  on  Bills,  5th  Am.  ed.  p.  v.  Meserve,  17  N.  H.  432;  but  see  Newell  v. 

146,  note  1  ;  Caruth  v.   Thompson,   16   B.  Williams,  5  Sneed  208. 


OF    CONTRACTS. 


86 


may  be  made  without  recourse  to  the  endorser,  or  "  sans  recours,"  as 
it  is  generally  expressed,  in  which  case  the  endorser  avoids  all  personal 
liability. (2)  The  drawer  of  a  bill,  or  the  endorser  of  a  bill  or  note,  will, 
however,  be  discharged  from  all  liability,  unless  the  person  requiring 
payment  should,  within  a  reasonable  time,  give  him  notice  that  the  bill 
or  note  has  not  been  paid,  or,  as  it  is  termed,  has  been  dishonored,  and 
give  him  to  understand,  *either  expressly  or  by  implication,  r*o7-i 
that. he  looks  to  him  for  payment.(«)  In  consequence  of  the  con- 
sideration being  presumed  to  have  been  given  for  every  bill  or  note  till 
the  contrary  is  shown,  it  follows,  that  if  a  bill  or  note  should  have  been 
drawn,  accepted  or  endorsed  without  any  consideration,  or  for  a  consid- 
eration which  is  illegal,  a  bona  fide  holder  for  valuable  consideration,  or 
any  endorsee  from  him,  may,  nevertheless,  enforce  payment;  for  when 
he  took  the  security  he  was  entitled  to  rely  on  the  legal  presumption  of 
a  proper  consideration  having  been  given. (i)'     It  is  stated  by  Sir  Wil- 

(z)  Byles  on  Bills  117,  Gth  ed. 

(a)  Hartley  v.  Case,    4  B.  &   C.  339   (E.  C.  L.  R.  vol.    10),  Byles  on  Bills  213  ei  seq., 
eth  ed. 

(b)  Collins  V.  Martin,  1  Bos.  &  Pul.  651  ;  Morris  v.  Lee,  Bayley  on  Bills  500  ;  Robin- 
son V.  Reynolds,  2  Q.  B.  196  (E.  C.  L.  R.  vol.  42)  ;  May  v.  Chapman,  16  M.  &  W.  355. 


^  In  general,  accommodation  paper,  as 
between  others  than  the  original  parties  to 
it,  is  to  be  governed  by  the  rules  of  nego- 
tiable instruments  founded  upon  a  valua- 
ble consideration  :  Brown  v.  Fort,  1  Mart. 
34  ;  Harrod  v.  Lafarge,  12  Id.  21  ;  Dorsey 
V.  Their  Creditors,  1  New  Series  (La.)  12  ; 
Church  V.  Barlow,  9  Pick.  549  ;  Commer- 
cial Bank  v.  Cunningham,  24  Id.  276 ; 
Quinn  v.  Fuller,  7  Mete.  225 ;  Perry  v. 
Green,  4  Harrison  61 ;  Jackson  v.  Richards, 

2  Caines  243  ;  Grandin  ik  Le  Roj%  3  Paige 
509;  Clopper's  Admr.  v.  The  Union  Bank, 
1  Har.  &  Johns.  103  ;  Lathrop  v.  Morris,  5 
Sandf.  S.  C.  9  ;  Appleton  v.  Donaldson,  3 
Penn.  St.  381  ;  Snyder  v.  Wilt,  15  Penn. 
St.  65  ;  Bank  of  Montgomery  Co.  v. 
Walker,  9  S.  &  R.  229 ;  Aiken  v.  Cathcart, 

3  Richard.  133  ;  Holmes  v.  Paul,  6  Am.  L. 
Reg.  482  ;  s.  c.  3  Grant's  Cases,  299  ;  Yates 
V.  Donaldson,  5  Md.  389  ;  Zwellweger  v. 
Caffe,  5  Duer  87  ;  Robins  v.  Richardson,  2 
Bosw.  248  ;  Work  v.  Kase,  34  Penn.  St. 
138 ;  Post  V.  Tradesmen's  Bank,  28  Conn. 
420;  Struthers  v.  Kendall  et  al.,  41  Penn. 
St.  214  ;  and  even  where  the  holder  of  the 


paper,  knowing  that  it  has  been  given  or 
accepted  for  the  accommodation  of  the  en- 
dorser or  drawer,  gives  time  to  such  en- 
dorser or  drawer,  the  maker  or  acceptor  is 
not  thereby  discharged;  for,  having  put 
himself  on  the  paper,  as  principal  debtor, 
he  is  not  entitled  to  the  privileges  of  a 
surety,  as  between  himself  and  strangers : 
Bank  of  Montgomery  v.  Walker,  9  S.  &  R. 
229  ;  s.  c.  12  Id.  382  ;  Whitev.  Hopkins,  3  W. 
&  S.  99 ;  Lewis  v.  Hauchman,  2  Penn.  St. 
416;  Foard  v.  Womack,  use,  &c.,  2  Ala. 
368  ;  Tarver  v.  Nance,  5  Id.  712  ;  French  v. 
Bank  of  Columbia,  4  Cranch  153  ;  Parks 
et  al.  V.  Ingram,  et  al.,  2  Fost.  281  ;  J.  &  T. 
Powell  V.  Waters,  17  Johns.  176;  Murrah 
et  al.  V.  Judah,  6  Cowen  484;  Commercial 
Bank  of  Albany  v.  Hughes,  17  Wend.  94; 
Love  et  al.  v.  Brown  et  al.,  38  Penn.  St. 
308  ;  Ross  v.  Bedell,  5  Duer  462  ;  Howard 
V.  Welchman,  6  Bosw.  280;  Melms  v. 
Werdehoff,  14  Wis.  18;  but  see  Clopper's 
Admr.  v.  The  Union  Bank,  7  Har.  &  Johns. 
103;  Perry  v.  Green,  4  Harrison  61.  But 
this  proposition  is  subject  to  certain  modi- 
fications for, — First,  where  a  bill  is  drawn 


87 


OF    CIIOSES    IN   ACTION. 


liam  Blackstone,(c)  "that  every  note,  from  the  subscription  of  the  drawer, 
carries  ^vith  it  an  internal  evidence  of  a  good  consideration."  This 
however  appears  to  be  a  mistake.  The  law  does  not  give  this  effect  to 
bills  of  exchange  and  promissory  notes  in  respect  of  the  undertaking 
being  evidenced  by  writing,  but  in  order  to  strengthen  and  facilitate  that 
commercial  intercourse  which  is  carried  on  through  the  medium  of  such 
securities. ((^)  On  this  ground  the  law  allows  these  instruments  to  form 
an  exception  to  the  general  rule  that  a  consideration  must  be  shown  for 
every  agreement,  although  evidenced  by  writing.  The  remedies  on  bills 
of  exchange  and  promissory  notes  have  been  facilitated  by  a  recent 
act.(c) 

(c)  2  Black.  Com.  446.  (d)   1  Fonbl.  Eq.  343,  344. 

(e)  Stat.  18  &  19  Vict.  c.  67.  The  stamps  on  bills  and  notes  are  now  regulated 
by  stats.  17  &  18  Vict.  c.  83,  23  Vict.  c.  15,  23  &  24  Vict.  c.  Ill,  and  27  &  28  Vict.  c. 
56,  s.  2.2 


for  the  accommodation  of  the  drawer,  or 
endorser,  he  for  whose  benefit  it  is  drawn, 
is  not  entitled  to  notice  of  non-acceptance 
or  non-payment:  Armstrong  et  al.  v.  Gray, 
1  Stew.  175  ;  Evans'  Admr.  v.  Norris  et  al., 

1  Ala.  511  ;  Foard  v.  Womack,  use,  &c.,  2 
Id.  368;  Tarverw.  Nance,  5  Id.  712  ;  Shir- 
ley V.  Fellows  et  al.,  9  Porter  (Ala.)  300  ; 
Holman  v.  Whiting,  19  Ala.  704  ;  French 
V.  The  Bank  of  Columbia,  4  Cranch  153; 
Gillespie  et  al.  v.  Cammack  et  al.,  3  La. 
Ann.  248;  Clopper's  Admr.  r.  The  Union 
Bank,  7  Har.  &  Johns.  103;  Hoffman  v. 
Smith,  1  Caines  160  ;  Commercial  Bank  of 
Albany  t>.  Hughes,  17  Wend.  94;  Deny  v. 
Palmer,  5  Ired.  610;  Farmers'  Bank  v. 
Vanmeter,  4  Rand.  553  ;  Reid  v.  Morrison, 

2  W.  &  S.  406  ;  Ross.  v.  Bedell,  5  Duer  462. 
Secondly,  where  one  has  paid  value  for  an 
accommodation  bill  or  note,  he  may  re- 
cover upon  it,  even  though  he  took  it  with 
the  knowledge,  that  it  was  drawn  for  the 
accommodation  of  one  or  more  of  the 
parties :  Towusley  v.  Sumrall,  2  Peters 
183 ;  Lambest  v.  Sandford,  2  Blackf.  137  ; 
Eldridge  v.  Duncan,  1  B.  Mon.  102  ;  Rea- 
wick  V.  Williams,  2  Md.  363;  Brown  v. 
Mott,  7  Johns.  361  ;  Murrah  et  al.  v.  Judah, 
6  Cowen  484;  Grant  et  al.  v.  Ellicott,  7 
Wend.  227  ;  Perry  et  al.  v.  Crammond  et 
al.,  1  Wash.  C.  C.  100;  Pierson  v.  Boyd, 
2  Duer  33  ;  Steckel  v.  Steckel,  28  Penu.  St. 


235;  Pettigrew  v.  Chave,  2  Hilton  546; 
but  this  principle  has  been  contradicted  in 
Brown  v.  Fort,  1  Mart.  34 ;  Commercial 
Bank  v.  Cunningham,  24  Pick.  276,  and 
Quinn  v.  Fuller,  7  Mete.  225.  And  see 
Rochester  v.  Taylor,  23  Barb.  18. 

Where  an  endorser  has  signed  his  name 
in  blank  before  the  payee,  there  is  consid- 
erable diversity  of  opinion  as  to  the  nature 
of  his  liability,  in  the  absence  of  extrinsic 
evidence  on  the  subject,  some  cases 
holding  that  he  is  liable  as  a  prom- 
isor, or  surety :  Norton  v.  Hall,  41  Vt. 
471;  Pearson  v.  Stoddard,  7  Gray  199; 
Essex  Co.  V.  Edmands,  12  Id.  273  ;  others, 
that  it  amounts  to  a  guaranty  that,  with 
due  diligence,  the  note  will  be  collectable  : 
Riddle  v.  Stevens,  32  Conn.  378  ;  White  v. 
Weaver,  41  111.  409  ;  while  others  decide 
that  his  liability  is  that  of  second  endorser  : 
Lester  v.  Paine,  39  Barb.  616  ;  Kamin  v. 
Holland,  2  Oregon  59  ;  Badger  v.  Barnabee, 
17  N.  H.  120;  Smith  v.  Kessler,  44  Penn. 
St.  142  ;  and  that  proof  of  a  liability,  dif- 
ferent from  that  which  the  endorsement 
imports,  cannot  be  made  by  parol:  Shafer 
V.  The  Bank,  59  Id.  144.  See,  also,  Murray 
V.  McKee,  60  Id.  35. 

2  The  law  of  the  United  States  of 
America,  in  relation  to  stamps  on  bills 
and  promissory  notes,  will  be  found  in  a 
schedule,  at  the  end  of  sec.  170,  of  an  Act 


OF    CONTRACTS. 


87 


We  now  come  to  the  second  class  of  contracts,  namely,  special  contracts, 
or  contracts  by  deed.  These  contracts  differ  from  mere  simple  contracts 
in  the  following  important  particular,  that  they  of  themselves  import  a 
consideration, (/)  *whilst  in  simple  contracts  a  consideration  must  r^j^oo-i 
be  proved.  For  the  law  presumes  that  no  man  will  put  his  seal 
to  a  deed  without  some  good  motive.(^)  And  when  an  agreement  is  once 
embodied  in  a  deed,  such  deed  becomes  itself  the  agreement,  and  not 
evidence  merely,  as  is  the  case  when  a  parol  agreement  is  reduced  to 
writing.  On  this  principle  it  appears  to  be  that,  after  a  deed  has  been 
executed,  any  alteration,  rasure  or  addition  made  in  any  material  point, 
even  by  a  stranger,  will  render  the  deed  void. (7;)^     It  is  true  that  by 


(/)   1  Fonbl.  Eq.  342. 

(g)  See  Principles  "of  the  Law  of  Real  Property  118,  2d  ed. 
5th  ed. :  134,  6th  ed.  ;  137,  7th  ed.  ;  143,  8lh  ed. 
(A)  Pigot's  Case,  11  Rep.  27  a. 


123,  3d  &  4th  eds.  ;  128, 


of  Congress,  entitled,  "An  act  to  provide 
internal  revenue,  to  support  the  govern- 
ment, to  pay  interest  on  the  public  debt, 
and  for  other  purposes,"  approved  June 
thirtieth,  eighteen  hundred  and  sixty- 
four  ;  and  commonly  known  as  the  Inter- 
nal Revenue  Act;  as  amended  by  the 
fourth  section  of  the  Act  of  Congress,  en- 
titled "  An  Act  to  reduce  Internal  Taxes, 
and  for  other  purposes,"  approved  July  13, 
1870. 

1  The  ancient  English  doctrine  on  the 
subject  of  erasures,  alterations,  or  inter- 
lineations, undoubtedly  was,  that  the  slight- 
est change  in  any  instrument  of  writing, 
subsequently  to  its  execution,  avoided  it, 
whether  the  alteration  was  made  by  a 
party,  or  by  a  stranger  ;  and  the  court  de- 
cided, upon  view  of  the  instrument,  whether 
it  should  be  received  or  rejected.  In  this 
country,  the  doctrine,  that  an  alteration, 
when  made  by  a  stranger,  vitiates  the  doc- 
ument, is  not  sanctioned.  It  is  now  the 
general  opinion,  that  a  material  alteration 
in  any  instrument  of  writing,  will  avoid  it, 
if  made  by  one  of  the  parties  to  the  con- 
tract, or,  if  it  be  unexplained  ;  for  then  it 
is  presumed,  that  it  was  made  by  the  party 
having  it  in  his  custody  :  Steele's  Lessee 
V.  Spencer  et  al.,  1  Peters  560  ;  Inglish  et 
al.  V.  Breneman,  5  Ark.  377  ;  Shelton  v. 
Deering,  10  B.  Men.  407  ;  Letcher  v.  Bates, 


6  J.  J.  Marsh.  525  ;  Smith  v.  Crooker  et  al., 
5  Mass.  538;  Ford  v.  Ford,  17  Id.  418; 
Bowers  v.  Jewell,  2  N.  H,  543  ;  Vanauken 
v.  Hornbeck,  2  Green  179  ;  Jackson  v.  Ma- 
lin,  15  Johns.  293  ;  Woodworth  v.  Bank  of 
America,  19  Id.  391 ;  Vanhorne  v.  Dor- 
rance,  2  Dall.  306  ;  Heuningw.  Workheiser, 
8  Penn.  St.  518  ;  Van  Amringe  v.  Morton, 
4  Whart.  382  ;  Maise  v.  Garner,  Mart.  & 
Yerg.  383  ;  Newell  v.  Mayberry,  3  Leigh 
250  ;  Adams  et  al.  v.  Frye,  3  Mete.  103 
Bank  U.  S.  v.  Russell  et  al.,  3  Yeates  391 
Stephens  v.  Graham  et  al.,  7  S.  &  R.  505 
Wade  V.  Withington,  1  Allen  561  ;  Burn- 
han  V.  Ayer,  35  N.  H.  351 ;  Heffner  v.  Wen- 
rich,  32  Penn.  St.  423  ;  Southwark  Bank  v. 
Gross,  35  Id.  80;  Hill  v.  Cooley,  46  Id. 
259 ;  Booker  v.  Stivender,  13  Rich.  (So. 
Car.)  85  ;  Sheldon  v.  Hawes,  15  Mich.  519  ; 
and  this  is  so,  even  though  it  appears 
that  the  alteration  was  honestly  made,  for 
the  purpose  of  correcting  a  mistake  :  Mil- 
ler V.  Gilleland,  19  Penn.  St.  120  ;  Getty  j>. 
Shearer,  1  Am.  L.  Reg.  119;  s.  c.  20  Penn. 
St.  12  ;  Fay  v.  Smith,  1  Allen  477  ;  but  an 
immaterial  alteration  will  not  vitiate,  un- 
less it  be  made  by  one  of  the  parties  to  the 
instrument  altered  :  Johnson  v.  Bank  of 
U.  S.,  2  B.  Mon.  310  ;  Bank  of  Limestone 
V.  Penick,  5  Id.  29 ;  Wright  v.  Wright  et 
al.,  2  Halst.  175;  Jackson  v.  Malin,  15 
Johns.  293 ;  Morris's  Lessee  v.  Vanderen, 


OF    CHOSES    IN   ACTION. 


recent  decisions(?')  this   doctrine  has  been  extended  to  a  mere  written 
agreement.     But  although  it  is  no  doubt  highly  important  that  all  legal 

(f)  Davidson  i;.  Cooper,  13  M.  &  W.  343,  352  ;  Mollett  v.  Wackerbarth,  5  C.  B.  181 
(E.  C.  L.  R.  vol.  57).  It  is  now  held  that  immaterial  alterations,  though  made  by  a 
party  to  an  instrument,  do  not  render  it  void  :  Aldous  v.  Cornwell,  Law  Rep.  3  Q.  B.  573. 


1  Dall.  67  ;  Ilerdman  v.  Bratten,  2  Harring. 
39G :  Vauauken  v.  Hornbeck,  2  Green  179; 
Moore  r.  Bickham  et  al.,  4  Binn.  1. 

In  accordance  with  this  general  rule  on 
the  subject  of  material  alterations,  it  has 
been  held,  that  one  who  claims  under  an 
instrument,  which  appears  on  its  face  to 
be  altered,  is  bound  to  explain  the  altera- 
tion :   United  States  v.  Linn  et  al.,  1  How. 
(U.  S.)  104  ;  Newcomb  v.  Presbrey,  8  Mete. 
406  ;  Gellett  v.  Sweat,  1  Gilm.  475  ;  Hum- 
phreys V.   Guillou  et   al.,  13  N.    H.   385; 
Acker  v.  Ledyard,  8  Barb.  S.  C.  514;  Bar- 
rington  et  al.  v.  The  Bank  of  Washington, 
14  S.  &  R.  405  ;  Adams  et  al.  i'.  Frye,  3 
Mete.    103;  Hill  v.   Cooley,   46  Penn.    St. 
259;     Paine      v.     Edsell,      19     Id.     178; 
Huntington  v.  Finch,  3  Ohio  N.  S.  445  ; 
and   that   a    substantial    erasure,    is  pre- 
sumed to  be  false  or  forged,  and  must  be 
accounted  for  before  the  writing  can   be 
given    in   evidence  :    McMicken    v.    Beau- 
champ,  2  La.  290;  Fletcher  etal.  I'.  Cavelier 
et  al.,  4  Id.  270  ;  Slocumb  et  al.  v.  Wat- 
kins,  1  Rob.  214;  Chelsey  v.  Frost,  1  N.  H. 
145;  Hills    v.  Barnes   et  al.,    11    Id.   395; 
Jackson  v.  Osborn,  2  Wend.  555  ;  Hefifel- 
fiager  v.  Shutz  et  al.,  16  S.  &  R.  46;  Pre- 
vost  V.    Gratz    etal.,    1  Peters  C.  C.  364 ; 
Miller  v.  Reed,  3  Grant  51  ;  and  also,  that 
where  one  offering  a  deed,  proves  as  part 
of  his  evidence,  that  the  deed    has  been 
fraudulently  altered  by  him,  it  will  be  re- 
jected :  Babb  v.  Clemson,  10  S.  &  R.  419. 
On  the  other  hand,  it  has  been  decided, 
that  where  an  instrument  is  altered  against 
the  interest  of  the  party  claiming  under 
it,  the  law  will  not  presume  that  the  al- 
teration   was   improperly    made,    but    the 
jury  must  determine  the  matter  from  all 
the  circumstances  of  the  case :  Bailey  v. 
Taylor,   II  Conn.  531  ;  Whitmer  v.  Frye, 
10  .Misso.  348  ;  Farlee  v.  Farlee,  1   Zabr. 
280  ;  Heffelfinger  v.  Shutz  et  al.,  16  S.  <Sc  R. 


46.  Nor  is  a  party  bound  to  explain  an 
alteration,  when  it  does  not  appear  on  the 
face  of  the  deed,  but  is  alleged  by  the 
opposite  party  :  United  States  v.  Linn  et 
al.,  1  How.  (U.  S.)  104;  Warren  v.  Chick- 
asaw, 13  Iowa  588;  so  also,  if  there  is 
no  suspicion  leading  to  the  belief  that 
the  alterations  were  made  subsequent  to 
the  execution,  it  will  be  presumed  that 
they  were  made  before  :  Whitsell  v.  Wo- 
mack,  use,  &c.,  8  Alab.  482  ;  Farlee  v. 
Farlee,  1  Zabr.  280;  Cumberland  Bank  v. 
Hall,  I  Halst.  213;  Sayre  v.  Reynolds  et 
al.,  Admr.,  2  South.  737;  Bank  v.  Sears, 
4  Gray  95  ;  Stover  v.  Ellis,  6  Ind.  182  ; 
Harfan  v.  Berry,  4  Greene  (Iowa)  212  ;  Mc- 
Cormick  v.  Fitzmorris,  39  Misso.  24. 

As  regards  immaterial  alterations,  it  has 
been  held,  that  where  it  is  so  trivial,  as 
not  to  afi'ect  in  the  slightest  manner,  the 
meaning  of  the  original  instrument,  it  will 
not  vitiate  it,  even  though  the  alteration 
has  been  done  by  one  of  the  parties : 
Nichols  V.  Johnson,  10  Conn.  192  ;  Shel- 
ton  V.  Deering,  10  B.  Mon.  407  ;  Hunt  v. 
Adams,  6  Mass.  519;  Bowers  v.  Jewell,  2 
N.  H.  543;  Morril  v.  Otis,  12  Id.  466; 
Griffith  V.  Cox,  Tenn.  210;  Barrabine  et 
al.  V.  Bradhears,  5  Mart.  190  ;  Hale  v.  Russ, 
1  Greenl.  334;  Brown  v.  Pinkham,  18 
Pick.  172;  Knapp  v.  Maltby,  13  Wend. 
587;  Miller  v.  Read,  3  Grant's  Cases  52; 
Dunn  V.  Clements,  7  Jones  L.  58  ;  Martin  v. 
Good,  14  Md.  398 ;  Gordan  v.  Tizer,  39 
Miss.  805  ;  Kountz  v.  Kennedy,  63  Penn. 
St.  187.  When  an  immaterial  alteration 
has  been  made  by  a  stranger,  it  will  not 
vitiate  a  deed  :  Lewis  et  al.  v.  Payne,  8 
Cowen  71;  Wright  v.  Wright  et  al.,  2 
Halst.  175  ;  Jackson  v.  Malin,  15  Johns. 
293,  and  other  cases  cited  above  ;  and  even 
a  substantial  erasure,  if  proven  to  have 
been  done  by  a  third  person,  without  the 
connivance  of  either  of  the  parties,  is  not 


OF    CONTKACTS. 


instruments  should  be  preserved  in  their  integrity,  it  may  perhaps  be 
doubted  whether  the  doctrine  in  question  woukl  ever  have  existed,  had 


material:  Solibellas  v.  Reeves,  Curator,  3 
La.  55 ;  Farlee  v.  Farlee,  1  Zabr.  280  ; 
Rees  V.  Overbaugh,  6  Cowen  746 ;  Lewis 
et  aL  V.  Payne,  8  Id.  71 ;  Smith  v.  Dun- 
ham, 8  Pick.  246;  Ford  i'.  Ford,  17  Id.  418  ; 
Arrison  v.  Harmstead,  2  Penn.  St.  191; 
Boj'd  V.  McConnell,  10  Humph.  68  ;  Croft  v. 
White,  36  Miss.  455  ;  Terry  v.  Hazlewood, 

1  Duvall  (Ky.)  104. 

The  current  of  the  decisions  seems  to 
show,  that  an  erasure  in  a  deed,  does  not 
make  it  ipso  facto  void  ;  such  an  alteration 
will  not  render  an  instrument  invalid,  un- 
less it  was  done  under  circumstances 
which  the  law  does  not  allow:  Speake  et 
al.  V.  The  United  States,  9  Cranch  28; 
Ravisies  i'.  Allston,  5  Ala.  301  ;  Whitsell 
V.  Womack,  use,  &c.,  8  Id.  482  ;  Gooch  v. 
Bryant,  1  Shep.  386 ;  Wickes's  Lessee  v. 
Caulk,  5  Har.  &  Johns.  36;  Stewart  v. 
Preston,  1  Florida  10;  Wicker  v.  Pope,  12 
Rich.  387 ;  Vickery  v.  Benson,  26  Geo. 
582 ;  Farnsworth  v.  Sharp,  4  Sneed  55. 
Whether  an  erasure  has  been  made,  or 
not,  and  if  so,  when  it  was  made,  and  with 
what  intention  or  motive,  are  questions 
for  the  determination  of  a  jury  :  Steele's 
Lessee  v.  Spencer  et  al.,  1  Peters  560  ;  Gel- 
lett  V.  Sweat,  1  Gilm.  475  ;  Bowers  v. 
Jewell,  2  N.  H.  543 ;  Hills  v.  Barnes  et  al., 
11  Id.  395;  Cumberland  Bank  v.  Hall,  1 
Halst.  213;  Sayre  v.  Reynolds  et  al., 
Admr.,  2   South.  737  ;  Jackson  v.  Osborn, 

2  Wend.  555  ;  Acker  v.  Ledyard,  8  Barb. 
S.  C.  514  ;  Heffelfinger  v.  Shutz  et  al.,  16 
S.  &  R.  46;  Hudson  v.  Reel,  5  Penn.  St. 
279  ;  Vanhorn  v.  Dorrance,  2  Dall.  306  ; 
Marshall  et  al.  v.  Gougler,  10  S.  &  R.  164; 
Sigfried  v.  Swan,  6  Id.  312;  Barrington  et 
al.  V.  The  Bank  of  Washington,  14  Id.  405  ; 
Stevens  v.  Martin,  18  Penn.  St.  101;  Jor- 
dan V.  Stewart,  23  Id.  244  ;  Printup 
V.  Mitchell,  17  Geo.  558  ;  Little  v.  Hern- 
don,  10  Wall.  (U.  S.)  26.  Whether  an 
erasure  is  material  or  immaterial,  is  a 
question  for  the  opinion  of  the  court: 
Steele's  Lessee  v.  Spencer  et  al  ,  1  Peters 
560;  Hale  v.  Russ,  I  Greenl.  334;  John- 
son V.  The  Bank  of  the  United  States,  2  B. 


Mon.  310  ;  Brown  v.  Pinkham,  18  Pick. 
172;  Martendale  v.  FoUett,  1  N.  H.  95; 
Bowers  v.  Jewell,  2  Id.  543;  Morrill  v. 
Otis,  12  Id.  466  ;  Humphreys  v.  Guillou  et 
al.,  13  Id.  385;  Marshall  v.  Gougler,  10  S. 
&  R.  164 ;  Hill  v.  Cooley,  46  Penn.  St.  259, 

Although  a  writing  may  have  been  al- 
tered after  its  execution,  still,  if  subse- 
quently to  the  alteration,  it  be  ratified  by 
all  the  parties,  it  will  be  binding  :  Speake 
et  al.  V.  The  United  States,  9  Cranch  28  ; 
Hale  V.  Russ,  1  Greenl.  334  ;  Byers  v. 
McClanahan,  6  Gill  &  Johns.  250  ;  John- 
son V.  The  Bank  of  the  United  States,  2 
B.  Mon.  310  ;  Conwell  v.  Danridge's  Admr., 
8  Dana  272  ;  Bank  of  Limestone  v.  Penick, 
5  Mon.  29  ;  Smith  v.  Crooker  et  al.,  5  Mass. 
538  ;  Humphreys  v.  Guillou  et  al.,  13  N, 
H.  385  ;  Hills  v.  Barnes  et  al.,  11  Id.  395  ; 
Camden  Bank  v.  Hall  et  al.,  2  Green  583  ; 
Woolley  et  al.  v.  Constant,  4  Johns.  54  ; 
Penny  v.  Corwithe,  18  Id  499  ;  Barrington 
et  al.  V.  The  Bank  of  Washington,  14  S.  k 
R.  405  ;  Shippen's  Heirs  v.  Clapp,  29  Penn. 
St.  265  ;  Collins  v.  Makepeace,  13  Ind.  448  ; 
Ratcliffe  v.  Planters'  Bank,  2  Sneed  425  ; 
Fitzpatrick  v.  Fitzpatrick,  6  R   I.  64. 

A  distinction  has  been  drawn  between 
deeds,  or  instruments  under  seal,  and 
grants  of  estates  lying  merely  in  grant,  or 
bills  or  notes,  as  respects  loss  of  evidence 
of  title,  arising  from  erasures  ;  thus,  it  has 
been  held,  that  if  a  deed  of  conveyance  be 
altered,  the  title  to  the  land  conveyed 
thereby,  is  not  affected,  but  merely  the 
evidence  of  that  title,  and  the  covenants 
of  the  deed  :  Barrett  i\  Thorndike,  1 
Greenl.  73  ;  Wallace  v.  Harmstead,  15 
Penn.  St.  462  ;  Withers  v.  Atkinson,  1 
Watts  236  ;  Williams  v.  Van  Tuyl,  2  Ohio 
N.  S.  336  ;  Babb  v.  Clemson,  10  S.  &  R. 
419;  and,  "  that  where  the  subject-matter 
of  the  deed  lies  in  grant,  so  that  the  estate 
created,  cannot  exist  without  the  deed, 
because  it  is  of  the  essence  of  the  estate, 
any  alteration  in  the  deed,  material  or  im- 
material, bj'  the  party  claiming  the  estate, 
avoids  the  deed  as  to  him,  to  all  intents 
and  purposes,  so  that  not  only  all  remedy 


88 


OF   CIIOSES   IN   ACTION. 


there  been  no  other  reason  for  it  than  the  duty  of  a  person  having  the 
custody  of  an  instrument  made  for  his  benefit,  to  preserve  it  in  its 
original  state. 


by  action,  but  the  estate  itself,  is  gone  :" 
Lewis  et  al.  v.  Payne,  8  Cowen  7.  As  re- 
gards deeds  of  conveyance  of  land, there 
can  be  no  question,  that  a  fraudulent 
alteration,  or  even  a  voluntary  destruction, 
by  a  party,  will  not  destroy  his  title,  but 
merely  vitiates  his  evidence,  and  destroys 
the  covenants  of  the  deed  :  Barrett  v. 
Thorndike,  1  Greenl.  73  ;  Jackson  v. 
Chase,  2  Johns.  87  ;  Lewis  et  al.  v.  Payne, 
8  Cowen  7  ;  Jackson  v.  Gould,  7  Wend. 
364  ;  Withers  v.  Atkinson,  1  Watts  236  ; 
Wallace  v.  Harmstead,  44  Penn.  St.  492  ; 
Greysons  v.  Richards,  10  Leigh  57  ;  Babb 
V.  Clemson,  10  S.  &  R.  419  ;  Alexander  v. 
Hickox,  34  Miss.  496. 

If  a  note  be  altered  by  the  promisee,  its 
validity  is  destroyed,  and  as  the  evidence 
of  the  title  to  the  note  is  gone,  so  is  the 
remedy,  and  no  other  evidence  can  be  re- 
sorted to  for  the  purpose  of  maintaining 
an  action  :  Martendale  v.  Follett,  1  N.  H. 
95  ;  Blade  v.  Nolan,  12  Wend.  173  ;  Bigelow 
V.  Stilphen,  35  Vt.  521 ;  and,  a  material 
alteration  in  any  commercial  paper,  with- 
out the  consent  of  the  party  to  be  charged, 
extinguishes  his  liability  :  Wood  v.  Stede, 
6  Wall.  80. 

There  is  yet  another  topic  to  be  noticed 
in  connection  with  this  subject,  and  that 
is,  in  relation  to  bonds  or  notes  in  blank, 
or  drawn  with  blanks.  It  seems  to  be  ad- 
mitted, as  respects  notes,  that  where  one 
writes  his  name  upon  a  piece  of  paper,  or 
draws  a  note  with  blanks,  and  gives  the 
paper  or  writing  to  another,  who  draws  a 
note,  or  fills  up  the  blanks,  it  is  valid, 
upon  the  principle  of  implied  consent : 
Inglish  et  al.  v.  Brenneman,  4  Eng.  122; 
3.  c.  5  Id.  377  ;  Bank  of  Limestone  v. 
Penick,  5  Mon.  59  ;  Kitchen  v.  Place,  41 
Barb.  465  ;  Bank  of  St.  Clairsville  v.  Smith, 
5  Ohio  222.  In  this  last  case,  a  note  was 
drawn  with  a  blank  sum,  though  there  was 
a  verbal  stipulation,  that  it  should  not  be 
filled  to  a  greater  amount  than  $200  ;  it 
was,  however,  filled  for  $700,  yet  the  note 


was  held  good.  And  see  also,  Worrall  v. 
Gheen,  39  Penn.  St.  388,  which,  however, 
in  NefF  v.  Horner,  63  Id.  327,  was  held 
to  be  an  exceptional  case.  But  it  has 
been  held,  that  the  blanks  only  are  to 
be  filled  which  will  be  sufficient  to  make 
it  a  valuable  instrument,  and  hence  where 
a  blank  bill  of  exchange  was  changed  to  a 
promissory  note,  it  was  considered  void  : 
Bank  V.  Douglas,  31  Conn.  170;  and  see 
Ives  V.  Farmers'  Bank,  2  Allen  (Mass) 
236. 

On  the  subject  of  bonds,  the  cases  are 
wholly  irreconcilable  ;  the  following  hold- 
ing, that  where  one  affixes  his  signature 
and  seal  to  a  piece  of  paper,  and  author- 
izes it  to  be  filled,  it  will  be  binding : 
Boardmant'.  Goret,  1  Stew.  517  ;  Wiley  etal. 
V.  More  etal.,  17  S.&  R.438;  Bank  of  South 
Carolina  v.  Hammond,  1  Rich.  281 ;  Gour- 
din  V.  Commander  et  al.,  6  Id.  497  ;  Hulty  v. 
Commonwealth,  3  Grant  61,  the  contrary 
being  maintained  in  Byers  v.  McClanahan, 
6  Gill  &  Johns.  250;  Ayers  w.  Harnes,  1 
Ohio  372  ;  Horry  Dist.  v.  Harrison,  1  N.  & 
McC.  554  ;  Boyd  v.  Boyd,  2  Id.  125  ;  Dun- 
can V.  Hodges,  4  McC.  239  ;  Parminter  v. 
McDaniel,  1  Hill  267  ;  Stoney  v.  McNeill, 
Harp.  156  ;  Gilbert  v.  Anthony,  1  Yerg.  69  ; 
Drury  v.  Foster,  2  Wall.  (U.  S.)  24.  The 
same  diversity  of  opinion  exists  in  relation 
to  bonds  executed  with  blanks  ;  some  of 
the  cases  holding  them  to  be  valid,  as 
Smith  V.  Crooker,  5  Mass.  538  ;  Ex  parte 
Decker,  6  Cowen  59  ;  Ex  parte  Kerwin,  8 
Id.  118  ;  Commercial  Bank  of  Buffalo  v. 
Cortwright,  22  Wend.  348  ;  Vanhook  v. 
Barnett  et  al.,  4  Dev.  272  ;  Whiting  v. 
Daniel  et  al.,  1  Hen.  &  Munf.  390  ;  Duncan 
V.  Hodges,  4  McC.  239  ;  Norfleet  v.  Ed- 
wards, 7  Jones  L.  455  ;  and  others  deciding 
that  they  have  no  validity  ;  Graham  v. 
Holt,  3  Ired.  300  ;  Davenport  v.  Sleight,  2 
Dev.  &  Bat.  381  ;  McKee  v.  Hicks,  2  Dev. 
379  ;  Harrisons  v.  Tivernans,  4  Rand.  187  ; 
People  V.  Organ,  27  111.  27  ;  or,  that  at 
least,  there  must  be  some  proof  of  author- 


OF    CONTRACTS.  88 

Having  now  spoken  of  the  promise,  Avlietber  express  or  implied,  which 
is  necessary  to  a  contract,  and  also  of  the  consideration,  whether  express 
or  implied,  by  which  such  promise  is  sustained,  let  us  consider  some  im- 
portant objects  for  which  a  contract  may  be  made,  and  which  seem  to 
require  a  special  mention.  The  object  for  which  a  contract  is  made  may 
be  either  lawful  or  unlawful ;  and  if  it  be  unlawful  the  contract  will  be  void, 
and  the  illegality  may  be  pleaded  as  a  defence  to  an  action  brought  upon 
such  a  contract.(A;)  A  distinction  was  formerly  *taken  between  [-;j:oq-i 
contracts  whose  object  was  merely  prohibited  by  the  law  under 
some  given  penalty,  and  those  whose  object  was  morally  wrong.  The 
former  were  termed  mala  proMbita,  the  latter  mala  in  se  ;{l)  and  it  was 
considered  that,  as  the  former  involved  no  moral  turpitude,  a  man  might 
embrace  either  of  the  alternatives  offered  by  the  law,  and  either  abstain 
from  the  oflFence  and  remain  harmless,  or  commit  it  and  suffer  the  penalty. 
This  distinction,  however,  has  long  been  exploded  ;{m)  for  it  is  considered 
to  be  equally  unfit  that  a  man  should  be  allowed  to  take  advantage  of 
what  the  law  says  he  ought  not  to  do,  whether  the  thing  be  prohibited 
because  it  is  against  good  morals,  or  whether  it  be  prohibited  because  it 
is  against  the  interest  of  the  state.^     Whether,  therefore,  the  object  of  a 

(k)  Collins  V.  Blantern,  2  Wils.  341,  347;  s.  c.  1  Smith's  Leading  Cases  154;  Pax- 
ton  V.  Popham,  9  East  408;  Pole  v.  Harrobin,  9  East  416,  n. ;  Begnis  v.  Armistead,  10 
Bing.  107  (E.  C.  L.  R.  vol.  25) ;  s.  c.  3  M.  &  Sc.  516. 

(Z)   See  1  Black.  Com.  54,  57. 

(m)  Aubert  v.  Maze,  2  Bos.  &  Pul.  374,  375 ;  Cannan  v.  Bryce,  3  B.  &  Aid.  183  (El  C. 
L.  R.  vol.  5)  ;  Bensley  v.  Bignold,  5  B.  &  Aid.  335,  341  (E.  C.  L.  R.  vol.  7);  Cope  v. 
Rowlands,  2  M.  &.  W.  149,  157  ;  Fergussou  v.  Norman,  5  Bing.  N.  C.  76,  84  (E.  C.  L.  R. 
vol.  35). 


ity  to  fill  the  blanks  :  Clendaniel  v.  Hast-  ^  There  is  probably  no  principle  of  law 

ings,  5  Harring.  508.  better  settled,    than   that   every   contract 

In  regard  to  letters  of  attorney,  for  com-  must  have  a  legal  consideration  :  Pounds 

mercial,    banking,   and   ordinary   business  ?;.  Richards  et  al.,  21   Ala.  424;  Marey  v. 

purposes,  the  necessities  of  trade  have  led  Crawford,  1 6  Conn.  552  ;  Coolidge  v.  Blake, 

to  the   adoption  of  such  instruments  with  15  Mass-   430;  Wheeler  v..  Russell,  L7  Id. 

blanks,  to  a  very  large  extent.     The  great  258;  Wilson  et  al.  v.  Education   Soc,  10 

convenience  of  their  employment,  together  Barb.  S.  C.  308  ;  Weeks    r.  Lippineott,   42 

with  their  almost  universal  use  for  some  Penn.  St.   474 ;  Stanley  v.  Nelso.:,  28  Ala. 

purposes,  for  example,  the  transfer  of  stocks  514;  Fireman's   Ch.  Association  v.  Berg- 

and  loans,  will  probably  induce  the  courts  haus,  13  La.  Ann.  209 ;  Short  v.  Shultz,  43 

to    recognise    their  validity,   as    executed  Penn.  St.   207 ;  Martin  v.  Iron  Works,  35 

under   an  implied  agreement:  Bridgeport  Ga.  176;  and  it  is  immaterial  whether  the 

Bank  v.  Railroad  Co.,  30  Conn.  231  ;  and  see  illegality  of  the  consideration  consists  in  its 

Vliet  V.  Camp,  13  Wis.  198  ;  German,  &c.,  being  prohibited  by  statute,  or  in  its  being 

Association  v.  Sendmyer,  50  Penu.  St.  67.  contrary  to  good  morals,  or  against  public 


89 


OF    CIIOSES    IN    ACTION. 


contract  be  unlawful  because  morallj  wrong,  or  unlawful  by  the  policy 
of  the  common  law,  or  unlawful  because  a  penalty  is  attached  to  it  by 


policy  ;  whether  it  be  malum  prohibitum  or 
malum  in  se ;  for  under  either  aspect,  the 
contract  is  equally  void.  The  lending 
case  on  this  subject  is,  Armstrong  v. 
Toller,  11  Wheat.  258;  b.  c.  Toller  v. 
Armstrong,  4  Wash.  C.  C.  297,  in  which 
Marshall,  C.  J.,  says,  "  Questions  upon  ille- 
gal contracts  have  arisen  very  often,  both 
in  England  and  in  this  country  ;  and  no 
principle  is  better  settled,  than  that  no  ac- 
tion can  be  maintained  on  a  contract,  the 
consideration  of  which  is  either  immoral 
in  itself,  or  prohibited  by  law." 

In  like  manner,  if  the  original  consider- 
ation of  a  contract  is  in  any  respect  un- 
lawful, any  subsequent  agreement  founded 
upon  it,  and  by  which  it  is  to  be  carried 
into  effect,  is  likewise  unlawful ;  but  if 
the  subsequent  agreement  can  be  entirely 
separated  from  the  former  illegality,  it  is 
valid  :  Walker  v.  Bank  of  Washington,  3 
How.  62  ;  Warren  v.  Crabtree,  1  Greenleaf 
167  ;  Smith  v.  Barstow,  2  Doug.  153  ;  Early 
V  Mahon,  19  Johns.  147  ;  Bell  v.  Quinn,  2 
Sandf.  S.  C.  14G  ;  Columbia  Bridge  Co.  v, 
Kline,  Bright.  320;  Terry  v.  Bissell,  26 
Conn.  23;  Bates  v.  Watson,  1  Sneed  376  ; 
Shelton  v.  Marshall,  16  Texas  344  ;  Bou- 
telle  V.  Melendy,  19  N.  H.  196;  Barton  v. 
Port  Jackson  &  Union  Falls  Plank  Road 
Co.,  17  Barb.  397;  Butler  w.  Myer,  17  Ind. 
77;  Campbell  v.  Sloan,  62  Penn.  St.  481; 
Thornburg  v.  Harris,  3  Cold.  (Tenn.)  157; 
and  so,  too,  if  the  consideration  is  part 
lawful,  and  part  unlawful,  the  good  shall 
stand,  and  the  bad  only  be  avoided,  unless 
it  be  of  such  a  nature  that  the  good  and 
bad  cannot  be  separated,  in  which  case  the 
whole  contract  will  be  void  :  Nicholson  v. 
Fearson,  7  Peters  103;  Moncure  v.  Der- 
mott,  13  Id.  345  ;  Whitsell  v.  Womack,  8 
Ala.  466;  Pond  v.  Smith,  4  Conn.  297; 
Terry  et  al.  v.  Olcott,  Id.  442  ;  Gardner  v. 
Mazey,  9  B.  Mon.  90  ;  Irvine  v.  Stone  et  al., 
6  Cush.  508;  Hinds  v.  Chamberlain,  6  N. 
H.225;  Carleton  i-.  Whitcher,  5  Id.  196; 
Roby  V.  West,  4  Id.  285;  Crawford  v. 
Merrell,  8  Johns.  253;  Township  of  Not- 
tingham V.  Giles,  1  Penna.  R.  120;  Vroom 


V.  Exrs.  of  Smith,  2  Green  479;  Hook  v. 
Gray,  6  Barb.  S.  C.  398  ;  Brown  v.  Tappan, 
9  Wend.  175  ;  Hamilton  v.  Canfield,  2  Hall 
526 ;  Van  Alstyne  v.  Wimple,  5  Cowen 
162  ;  Frazier  v.  Thompson,  2  W.  &  S.  235; 
Yundt  V.  Roberts,  5  S.  &  R.  138  ;  Filson's 
Trustees  v.  Himes,  5  Penn.  St.  452  ;  Thomas 
V.  Brady,  10  Id.  170;  Buck  v.  Albee,  26 
Vt.  184 ;  Gelpeke  v.  Dubuque,  1  Wallace 
(U.  S.)  221  ;  Carleton  v.  Woods,  8  Foster 
290;  Rose  v.  Truax,  21  Barb.  361  ;  Barker 
V.  Parker,  23  Ark.  390  ,  Doty  v.  Knox,  &c.. 
Bank,  1  Ohio  133  ;  Treadwell  v.  Davis, 
34  Cal.  601  ;  Le  Beerski  v.  Paige,  36  N.  Y. 
537  ;  and  although  a  contract  tainted  with 
fraud,  Hiay  be  ratified  or  confirmed,  with- 
out a  new  contract  founded  on  a  new  con- 
sideration ;  yet  when  the  contract  is  in 
substance,  or  essential  form,  illegal,  neither 
party  can  ratify  it,  because  the  wrong  done 
is  against  the  state,  and  it  only  can  forgive 
it:"  Pearsoll  i».  Chapin,  44  Penn.  St.  15; 
Boutelle  v.  Melendy,  19  N.  H.  196. 

A  distinction  is  to  be  noted  on  this  sub- 
ject between  contracts  executory,  and  those 
executed ;  in  the  former  case  the  contract 
will  not  be  enforced,  by  reason  of  the  un- 
lawful consideration  or  promise,  and  in 
the  latter  case  the  courts  will  not  grant 
relief,  but  will  suffer  the  status  of  the 
parties  to  remain,  and  particularly  so, 
where  the  application  is  made  by  the  party 
who  has  been  guilty  of  the  unlawful  act : 
Adams  v.  Barrett,  5  Geo.  508;  Musson  et 
al.  V.  Fales  et  al.,  16  Mass.  334;  Ball  v. 
Gilbert,  12  Mete.  397;  Skinner  w.  Hender- 
son, 10  Misso.  205  ;  Kneeland  v.  Rogers  et 
al.,  2  Hall  579 ;  Greene  v.  Godfrey,  44 
Maine  25;  Baily  v.  Milner,  35  Ga.  330; 
Dumont  v.  Dufore,  27  Ind.  263.  But  the 
guilty  party  will  not  be  allowed  to  retain 
the  fruits  of  the  contract,  at  the  expense 
of  the  innocent,  and  will  be  liable,  not 
upon  any  valid  portion  of  the  express  con- 
tract, but  on  the  implied  contract,  to  ac- 
count for  money  or  property  received  : 
Tracy  v.  Talmadge,  4  Sneed  429;  Hunt  v. 
Turner,  9  Texas  385. 

But  a  contract  which  has  been  made  in 


OF   CONTRACTS. 


89 


any  particular  statute,  in  every  case  the  contract  is  void ;  and  it  is  in- 
different, under  such  circumstances, -whether  the  contract  be  made  by 


a  foreign  country,  and  is  in  accordance 
with  the  laws  of  the  place  where  it  was 
made,  may  be  carried  into  effect  in  this 
country,  although  contrary  to  our  laws  ; 
unless  it  was  entered  into  with  the  intention 
of  being  perfected  here,  in  fraud  of  our  stat- 
utes ;  or  unless  its  enforcement  would 
result  in  injury  to  our  citizens,  or  afford  a 
pernicious  example:  Greenwood  v.  Curtis, 
6  Mass.  358  ;  Thompson  v.  Ketchum,  8 
Johns.  189;  Hicks  v.  Brown,  12  Id.  142; 
Sconelle  v.  Canfield,  14  Id.  338  ;  Lodge  v. 
Phelps,  1  Johns.  Cas.  139;  Ruggles  v. 
Keeler,  3  Johns.  263  ;  Emory  v.  Greenough, 
3  Dall.  370,  n. ;  Adams  v.  Gay,  19  Vt.  358  ; 
Smith  V.  Godfrey,  8  Foster  379;  Thatcher 
V.  Morris,  1  Kernan  437  ;  Jameson  v. 
Gregory,  4  Mete.  (Ky.)  303. 

Where  a  statute  contains  a  provision  for 
the  performance  of  a  certain  thing,  other 
ways  of  accomplishing  that  thing  are  not 
necessarily  void  ;  if,  indeed,  the  statute 
expressly  says  that  the  act  shall  be  done  in 
the  manner  pointed  out,  and  not  otherwise, 
then  all  other  means  are  unlawful,  but  if 
it  only  directs,  and  does  not  enjoin,  the 
matter  may  be  accomplished  in  any  other 
way,  provided  it  be  not  contrary  to  the 
principles  of  the  common  law,  or  to  good 
morals  or  public  policy  :  Whitsell  v.  Wo- 
mack,  use,  &c.,  8  Ala.  466  ;  Lugg  v.  Bur- 
gess et  al.,  2  Stew.  509;  Bates  et  al.  v. 
The  Bank  of  the  State  of  Alabama,  2  Ala. 
487  ;  Postmaster-General  v.  Early,  12 
Wheat.  136  ;  Smith  v.  The  United  States, 
5  Peters  293  ;  Farrar  et  al.  v.  The  United 
States,  Id.  273  ;  Justices  of  Christian  v. 
Smith  et  al.,  2  J.  J.  Marsh.  474  ;  Fant  et  al. 
V.  Wilson,  3  Mon.  343 ;  McCormick  v. 
Young,  3  J.  J.  Marsh.  180  ;  Baker  v.  Haley 
et  al.,  5  Greenl.  240;  Kavanagh  v.  Saun- 
ders et  al.,  8  Id.  422  ;  Purple  v.  Purple  et 
al.,  5  Pick.  226;  Vroom  v.  Exrs.  of  Smith, 
2  Green  479  ;  Ellis  v.  Robinson,  2  Penna. 
R.  707  ;  Howard  v.  Blackford,  Id.  777  ; 
Day  V.  Hale,  7  Halst.  204;  Woolwich  v. 
Forrest  etal.,  1  Penna.  R.  115;  Township  of 
Middleton  v.  McCormick  et  al.,  2  Id.  200  ; 


Doll  V.  Bull  et  al.,  2  Johns.  Cas.  239 ;  Clo- 
asen  v.  Shaw,  5  Watts  468 ;  Farmers'  Bk. 
of  Reading  v.  Boyer,  16  S.  &  R.  4;  Ander- 
son ?'.  Foster,  2  Bail.  501  ;  Hooe  v.  Tebbs 
et  al.,  1  Munf.  501. 

And  even  where  an  act  is  expressly  pro- 
hibited by  the  laws,  it  does  not  follow  that 
every  contract  which  may  be  tainted  with 
the  illegal  matter  is  absolutely  void,  but 
it  depends  in  each  case  upon  a  sound  con- 
struction   of    the    statute    prohibiting  it. 
Take,  for  instance,  the  subject  of  usury, 
which  is  generally,  throughout  the  Union, 
forbidden     by    statutory    enactment,    yet 
usurious   contracts   are  not  usually  held 
absolutely  void,  but  the  decisions  on  the 
subject  are  as  various  as  the  statutes,  and 
in   every  case   it  depends   upon  the   con- 
struction of  the  statute,  whether  the  con- 
tract shall  be  void,  or  only  void^T-o  tanio. 
In  a  word,  if  the  law  does  not  avoid  the 
instrument  or  contract,  on  account  of  such 
illegality,  it  will  be   valid  for  the   legal, 
and  void   only  fo.r  the  illegal   part  of  it : 
De  Wolf  V.  Johnson  et  al.,  10  Wheat.  367  ; 
Flecknor  v.  The   U.  S.  Bank,  8   Id.  338; 
Higginson  et  al.  v.  Gray  et  al.,  6  Mete.  212  ; 
Bank  of  Washington  v.  Arthur  et  al.,   3 
Gratt.   173;  Tracy  v.  Talmadge,  4  Sneed 
429.    Thus  in  New  Hampshire,  three  times 
the   usurious   interest  is   to   be    deducted 
from  the  claim,  which  will  then  be  good 
for  the  balance  :  Simons  v.  Steele,  36  N.  H. 
75;  Cole  v.  Hills,  44  Id.  227.     In  Indiana, 
Pennsylvania,     Kentucky,     Maine,     Ver- 
mont,   Tennessee,    Ohio,    Missouri,   Ala- 
bama   and    Michigan,    the    interest    over 
and    above    that    which    is    allowed    by 
law    onl}',    is     forfeited,     and    an    action 
may  be  brought  for  principal  and  lawful 
interest:  WycofiF  v.  Longhead,  2  Dall.  92  ; 
Turner  v.  Calvert,  12  S.  &  R.  46 ;  Berry  v. 
Walker,  9  B.  Mon.  467  ;  Wood  v.  Kennedy, 
19  Ind.  68  ;  Cowry  v.  Lewis,  Id.  121  ;  Ellis 
V.  Brannin,   1  Duvall  (Ky.)  49 ;  Pollock  v. 
Glazier,  20  Id.  262;  Larrabee  v.  Lambert, 
32  Maine  97;  Elworth  ?'.  Mitchell,  31   Id. 
249  J  White  v.  The  Franklin  Bank,  22  Pick. 


89 


OF    CHOSES   IN    ACTION. 


deed,  or  by  parol  merely.     Thus  if  a  bond  under  seal  be  given  by  a 
man  to  a  woman  in  order  to  induce  her  to  cohabit  with  him,  it  is  void  for 


181  ;  Hawkins  v.  Welsh,  8  Mo.  490  ;  The 
State  of  Ohio,  f.ir  the  use,  &c.  v.  Taylor 
et  al.,  10  Ohio  3T8  ;  Busby  v.  Finn,  1  Ohio 
N.  S.  410  ;  Isler  v.  Brunson,  6  Humph.  211 ; 
Beyers  v.  Boddie,  3  Id.  666 ;  Weatherhead 
V.  Boyers,  7  Yerg.  545 ;  Turney  v.  The 
State  Bank,  5  Humph.  407,  410  ;  Sawyer  v. 
Phillips,  15  Ohio  218;  McGhee  v.  George, 
38  Ala.  323  ;  Stevens  v.  Fisher,  23  Vt.  272  ; 
Burton  v.  Blin,  23  Id.  151  ;  Nichols  et  al. 
V.  Bliss,  22  Id.  581  ;  Heath  v.  Page,  48 
Penn.  St.  130  ;  Farmers'  Bank  v.  Burchard, 
33  Vt.  346 ;  Smith  v.  Stoddard,  10  Mich. 
148;  and  in  Arkansas  though  the  un- 
lawful contract  is  void  at  law  :  Hogan  v. 
Hensley,  22  Ark.  413,  yet  in  equity  the 
claim  is  good  for  the  principal  and  lawful 
interest:  Ruddell  v.  Ambler,  18  Id.  369: 
but  in  Pennsylvania,  formerly,  if  any  por- 
tion of  the  usurious  interest  had  been  re- 
ceived, the  whole  thing  loaned  was  forfeited 
as  a  penalty,  and  could  be  recovered  in  a 
qui  tarn  action :  Philip  v.  Kirkpatrick,  Ad- 
dis. 124;  Exrs.  of  Pawling  v.  Admrs.  of 
Pawling,  4  Yeates  220;  Large  t'.  Passmore 
et  al.,  5  S.  &  R.  51  ;  Evans  r.  Negley, 
13  Id.  218;  Agnew  v.  McElhare,  18  Penn. 
St.  484 ;  but  these  decisions  were  made 
under  the  Act  of  the  2d  of  March,  1723, 
which  has  since  been  repealed  by  the  Act 
of  the  28th  of  May,  1858,  Purd.  Dig.  (1861), 
p.  561 ;  Fitzsimons  v.  Baum,  44  Penn.  St. 
32  ;  Heath  v.  Page,  63  Penn.  St.  108.  In 
Illinois,  Louisiana,  Mississippi  and  South 
Carolina,  the  whole  interest  is  forfeited, 
and  the  principal  can  only  be  recovered: 
Lalande  v.  Breaux  et  al.,  5  Ann.  505; 
Richards  v.  Freesler,  2  Id.  265  :  Haynes  v. 
Cobb,  Id.  364 ;  McLaurin  v.  Parker  et  al., 
24  Miss.  511  ;  Quarles  v.  Brannon,  5  Strob. 
151;  Lucas  r.  Spencer,  27  111.  15.  But  see 
as  to  the  law  of  Illinois :  Cushman  v. 
Sutphen,  42  111.  25G. 

The  principle  seems  to  be,  in  accordance 
with  what  is  above  stated,  that  if  the  con- 
tract be  part  good  and  part  bad,  the  good 
shall  prevail  and  the  bad  be  avoided,  if 
they   can   be   separated ;  and   the   statute 


points  out  what  is  good  and  what  bad,  or 
determines,  that  under  certain  circum- 
stances, the  contract  is  to  be  considered 
entire,  and  that  therefore  the  good  and 
bad  cannot  be  separated,  but  the  whole 
contract  is  void.  If  the  basis  of  a  subsist- 
ing contract  is  usurious,  no  subse<iuent 
agreement  founded  upon,  and  inseparable 
from,  the  former  contract,  will  be  free  from 
the  taint  of  usury:  Jones  v.  Jackson,  14 
Ala.  186;  Bostford  v.  Sandford,  2  Conn. 
276  ;  Gibson  v.  Stearns,  3  N.  H.  185  ;  Tut- 
hill  V.  Davis,  20  Johns.  284;  Bridge  v. 
Hubbard,  15  Mass.  96;  Moter  f.  Dorsett, 
1  McCord  350  ;  Clark  v.  Badgely,  3  Halst. 
233;  Lee  v.  Peckham,  17  Wis.  383;  but  if 
a  subsisting  contract  is  good  and  legal,  it 
cannot  be  destroyed  by  a  subsequent 
agreement  as  to  usurious  interest :  Steb- 
bins  ?'.  Smith,  4  Pick.  97  ;  Swartwout  v. 
Payne,  19  Johns.  294;  Johnson  ?>.  John- 
son, 11  Mass.  359;  Hughes  v.  Wheeler,  8 
Cowen  77  ;  Rice  v.  Welling,  5  Wend.  595  ; 
Hammond  v.  Hopping,  13  Id.  505  ;  Mitchell 
V.  Cotton,  2  Fla.  149 ;  Troutman  v.  Barnett, 
9  Geo.  30;  Edgell  v.  Stanford,  6  Vt.  551;, 
Donnington  v.  Meeker,  3  Stockt.  362  ; 
Smith  V.  Hollister,  1  McCarter  (N.  J.)  153  ; 
and  it  is  not  usury,  to  purchase  a  note,  bond, 
or  other  security  for  money,  at  any  rate 
of  discount,  as  there  is  not  a  contract  of 
loan  ;  for  usury  is  the  taking  of  interest  at 
an  illegal  rate  upon  a  loan  ;  but  it  must 
be  a  bona  fide  transaction,  and  the  note  or 
bill  must  not  have  been  used,  or  made,  as 
a  mere  device  to  avoid  the  statutes  of 
usury  :  Saltraarsh  v.  Bank,  17  Ala.  761  ; 
s.  c.  14  Id.  668  ;  Brown  v.  Harrison,  17  Id. 
774  ;  Gregory  v.  Bewley,  2  Eng.  22  ;  s.  c. 
5  Ark.  318  ;  Caton  v.  Shaw,  2  Har.  &  G. 
13  ;  Belden  v.  Lamb,  17  Conn.  441  ;  Free- 
man V.  Brittin,  2  Harr.  191  ;  Braman  v. 
Hess,  13  Johns.  52  ;  Mann  v.  Company, 
15  Id.  44  ;  Powell  v.  Waters,  17  Id.  176  ; 
Cobb  V.  Titus,  13  Barb,  S.  C.  47  ;  Seymour 
V.  Marvin,  11  Id.  80;  Simpson  v.  Fullen- 
widder,  12  Ired.  334;  Musgrove  v.  Gibbs, 
1   Dall.  216;  Parker  v.  Cousins,    2   Gratt, 


OF   CONTRACTS. 


89 


the  immorality  of  its  object.(w)     But  a  bond  given  to  a  woman  in  respect 
of  the  injury  she  has  sustained  by  past  cohabitation  is  valid. (o)     For  in 

(n)  Walker  v.  Perkins,  1  Wm.  Black.  517;  s.  c.  3  Burr.  1568;  Gray  v.  Mathias,  5 
Ves.  286. 

(o)  Turner  v.  Vaughan  2  Wils.  339  ;  Hill  v.  Spencer,  2  Amb.  641  ;  Gray  v.  Mathias, 
5  Ves.  286 ;  Hall  v.  Palmer,  3  Hare  532  ;  Kyne  v.  Moore,  1  Sim.  &  Stu.  61  ;  2  Sim.  & 
Stu.  260 ;  Ingre  v.  Moseley,  6  B.  &  C.  133  (E.  C.  L.  R.  vol.  13)  ;  2  Sim.  161. 


372  ;  Sylvester  v.  Swan,  5  Allen  (Mass.) 
134  ;  so,  too,  to  determine  whether  or  not 
a  loan  is  usurious,  reference  must  be  had 
to  the  law  of  the  place  where  it  was  made  : 
Jacks  V.  Nichols,  5  Barb.  S.  C.  38  ;  Sherill 
V.  Hopkins,  1   Cowen  103  ;  Smith  i'.  Mead, 

3  Conn.  253  ;  De  Wolf  v.  Johnson,  10 
Wheat.  367  ;  Rose  v.  Phillips,  53  Conn. 
570. 

For  a  further  and  full  consideration  of 
the  subject  of  contracts  void  because  un- 
lawful, see  the  following  cases  : 

As  to  contracts  void  on  account  of  in- 
fringing some  statutory  provision  or  en- 
actment :  Hannay  v.  Eve,  3  Cranch  242 ; 
Patton  V.  Nicholson,  3  Wheat.  207  ;  The 
Julia,  8  Cranch  181  ;  The  Aurora,  Id.  263 
The  Hiram,  Id.  444 ;  s.  c.  1  Wheat.  440 
The  Ariadne,  2  Id.  143  ;  Craig  v.  The  State 

4  Peters  411  ;  Fales  v.  Mayberry,  2  Gall 
563;  Cambioso  v.  Maffet,  2  Wash.  C.  C 
103  ;  Kennett  v.  Chambers,  14  How.  39 
Harris  v.  Runnels,  12  Id.  80  ;  Munsell  v 
Temple,  3  Gilm.  93;  Wheeler  v.  Russell 
17  Mass.  257  ;  Bank  v.  Merrick,  14  Id.  322 
Hunt  V,  Knickerbocker,  5  Johns.  327 
Mitchell  V.  Smith,  1  Binn.  110  ;  Fowler  v. 
Throckmorton,  6  Blackf.  326;  Steele  v 
Curie,  4  Dana  384  ;  Dickerson  v.  Gordy,  5 
Rob.  420;  Rand  v.  Tobie,  32  Maine  420 
Merrick  v.  Bank,  8  Gill  73  ;  Richardson  v. 
Company,  6  Mass.  Ill  ;  Wickham  v.  Conk- 
lin,  8  Johns.  220  ;  Bank  v.  Niles,  1  Doug. 
411  ;  Maybin  v.  Coulon,  4  Dall.  298  ;  Dun- 
canson  v.  McClure,  Id.  308 ;  Nichols  v. 
Ruggles,  3  Day  145;  Pratt  v.  Adams,  7 
Paige  615;  Odineal  v.  Barry,  24  Miss.  9; 
Merrell  v.  Legrand,  1  How.  (Mo.)  150; 
Callagan  v.  Hallett,  1  Caines  104  ;  Ludlow 
I'.  Van  Rensselaer,  1  Johns.  94;  Goodale 
V.  Holridge,  2  Id.  193  ;  Walt  v.  Harper,  Id. 
386 ;  Love  v.  Palmer,  7  Id.  159 ;  Richmond 


I'.  Roberts,  Id.  319 ;  Read  v.  Pruyn,  Id. 
426  ;  Strong  v.  Tompkins,  8  Id.  98  ;  Yeo- 
mans  v.  Chatterton,  9  Id.  295;  Bruce  v- 
Lee,  4  Id.  410;  Graves  v.  Worrall,  14  Id. 
146;  Griswold  v.  Waddington,  15  Id.  57; 
s.  c.  16  Id.  438;  Seamen  y.  Waddington, 
16  Id.  510  ;  Beddis  v.  James,  6  Binn.  321 ; 
Eberman  v.  Reitzel,  1  W.  &  S.  181;  Fox  v. 
Mensch,  3  Id.  446  ;  Kepner  v.  Keefer,  6 
Watts  231  ;  Yerger  v.  Rains,  4  Humph. 
259,  267;  Ohio  Life  and  Insurance  Trust 
Company  v.  The  Merchants'  Insurance 
and  Trust  Co.,  11  Id.  1 ;  Heirs  of  Hunt  v. 
Heirs  of  Robinson,  1  Texas  758 ;  Elkins  v. 
Parkhurst,  17  Vt.  105  ;  Spalding  v.  Preston, 
21  Id.  9 ;  Terrett  et  al.  v.  Bartlett,  Id.  184; 
Case  V.  Riker,  10  Id.  482  ;  Meyers  v.  Byerly, 
45  Penn  St.  368. 

As  to  contracts  void  on  account  of  being 
contrary  to  good  morals,  or  because 
against  public  policy,  or  principles  of  the 
common  law,  see  as  well  some  of  the  above 
cases,  as  the  following :  Greenwood  v. 
Exrs.  of  Colcock,  2  Bay  67;  Denton  v.  Er- 
win  et  al.,  6  La.  Ann.  317;  Denton  v. 
Wilcox,  2  Id.  66;  Slidell  v.  Pritchard  et 
al.,  5  Rob.  101 ;  De  Sobry  v.  De  Laistre,  2 
Har.  &  Johns.  228 ;  Commonwealth  v. 
Harrington,  3  Pick.  26  ;  Columbia  Bank  v. 
Haldeman,  7  W.  &  S.  235  ;  Pulse  v.  State, 
5  Humph.  108  ;  Hale  v.  Henderson,  4  Id. 
199;  Allen  v.  Dodd,  Id.  132;  Logan  u. 
Austin,  1  Stew.  478  ;  Grant  et  al.  v.  McLes- 
ter,  8  Geo.  553 ;  Harralson  v.  Dicking,  2 
Car.  L.  Repos.  66  ;  The  First  Congrega- 
tional Church  of  the  City  of  New  Orleans 
V.  Henderson,  4  Rob.  209  ;  Shaw  v.  Reed, 
30  Maine  105  ;  Denny  v.  Lincoln,  Admr.,  5 
Mass.  387;  Churchill  v.  Perkins  et  al..  Id. 
541  ;  Parsons  v.  Winslow,  6  Id.  169;  Boyn- 
ton  V.  Hubbard,  7  Id.  112  ;  Sweet  et  al.  v. 
Poor  et.  al.,  11  Id.  549;  Ayer  v.  Hutchin- 


89  OF    CHOSES    IN   ACTION. 

r-*Q01  ^^'®  ^^^^  *^^  object  is  not  immoral ;  *and  the  consideration  im- 
plied  by  the  bond  being  a  deed  under  seal  supplies  the  want  which 
would  otherwise  exist  of  a  proper  consideration. (/»)  If  a  contract  have 
more  than  one  object,  and  some  of  the  objects  are  lawful  whilst  the  others 
are  unlawful,  the  unlawful  objects  will  not  vitiate  the  others,(^)  provided 
the  good  part  be  separable  from,  and  not  dependent  upon,  that  which  is 
bad;(r)  unless  of  course  the  whole  contract  should  be  rendered  void  by 
any  enactment  to  the  effect  that  all  instruments  containing  any  matter 
contrary  thereto  shall  be  void,  in  which  case  everything  connected  with 
the  instrument  Avill  be  vitiated. (6-)'  And  if  the  good  part  of  a  contract 
be  inseparable  from  the  bad,  as  if  a  contract  be  made  partly  in  considera- 
tion of  the  payment  of  money  (which  would  be  good),  and  partly  for  a 
consideration  whose  object  is  illegal,  the  illegal  part  of  the  consideration 
will  vitiate  the  good,  and  render  the  whole  contract  void.(i) 

(p)  Binnington  v.  Wallis,  4  B.  &  Aid.  650,  652  (E.  C.  L.  R.  vol.  6)  ;  ante,  p.  73. 

(g)  Gaskell  v.  King,  11  East  165  ;  Wigg  v.  Shuttleworth,  13  East  87  ;  Howe  v.  Synge^ 
15  East  440  ;  in  all  which  decisions  unlawful  covenants  to  pay  the  property  tax  were 
held  not  to  vitiate  other  valid  covenants  in  the  same  instrument.  See  also  Kerrison 
V.  Cole,  8  East  231  ;  Mallen  v.  May,  11  M.  &  W.  653  ;  Green  v.  Price,  13  M.  &  W.  695  ; 
affirmed  16  M.  &  W.  346  ;  Nicholls  v.  Stretton,  10  Q.  B.  346  (E.  C.  L.  R.  vol.  59). 

(;•)  See  Biddell  v.  Leeder,  1  B.  &  C.  327  (E.  C.  L.  R.  vol.  8),  decided  on  the  old  Ship 
Registry  Act. 

(s)  See  1  Smith's  Leading  Cases  169,  and  the  statutes  recited  in  the  preamble  to  5 
&  6  Will.  IV.  c.  41. 

(t)  Fetherstone  i^.  Hutchinson,  Cro.  Eliz.  199;  Bridget).  Cage,  Cro.  Jac.  103.  See 
also  per  Tindal,  C.  J.,  in  Waite  v.  Jones,  1  Bing.  N.  C.  662  (E.  C.  L.  R.  vol.  27)  ;  Hop- 
kins V.  Prescott,  4  C.  B.  578  (E.  C.  L.  vol.  56). 

son,  4  Id.  370  ;  Belding  v.  Pitkin,  2  Gaines  Carroll  v.  Tyler,  2  Har.  &  G.  54  ;  Smith  v. 

149 ;   Thurston  v.   Percival,   1    Pick.  415  ;  Smith,  1  Bail.  70  ;  Harris  v.  Ross's  Exrs., 

Shelton     v.   Homer   et   al.,   5    Mete.   462;  10  Barb.  S.  C.  489  ;  Hartzfield  «.  Garden, 

Worcester  V.  Eaton,  11  Mass.  368  ;  Doughty  7  Watts  152  ;  Chippenger  v.  Hopbaugh,  5 

V.  Owen,  24  Miss.  407  ;  Plummer  v.  Smith,  W.  &  S.  315  ;  Pingry  v.  Washburn,  1  Aik. 

5  N.  H.  553;  Sayles  «'.  Sayles,  1  Fost.  312  ;  264;    Cameron    v.   McFarland,    2    Car.    L. 

Sterling    v.   Simmickson,    2    South.   756;  Repos.  415  ;  Stout  w.  Wren,  1  Hawk.  420  ; 

Fanshor  v.  Stout,  1  Id.  312  ;  Sharp  et  al.  v.  Oberman  v.  Clemmons,  2  Dev.  &  Bat.  185  ; 

Teese,  4  Halst.  352  ;  Gulick  et  al.  v.  Ward  Barbee   v.  Armstead   et  al.,  10  Ired.  530  ; 

et  al.,  5  Id.  87;  Jones  r.  Caswell,  3  Johns.  Roll    v.   Raguet,   4   Ohio   418;    Coulon    v. 

Cas.    29  ;    Doolin  v.  Ward,  6  Johns.    194  ;  Morton  et  al.,  Exrs.,  4  Yeates  24  ;  Schenck 

Wilbur  V.  How,  8  Id.  444;   Thompson  v.  v.  Mingle,  13  S.  &  R.  29  ;  Lidenbender  v. 

Davies,  13  Id.  112  ;  Smith  et  al.  v.  Apple-  Charles's  Admr.  4  Id.  151  ;  Crook  v.  Wil- 

gate,   3   Zabr.   352;  Whitaker  v.  Cone,    1  liams,  20  Penn.  St.  344  ;  Corleyt;.  Williams, 

Johns.    Cas.   58;    Sherman    v.    Boyce,    15  1    Bail.  588;   Vincent  v.  Groom,  1   Yerg. 

Johns.  443 ;  Tuxbury  v.  Miller,  19  Id.  311 ;  430  ;  Bowers  v.  Bowers,  28  Penn.  St.  74  ; 

Hatch  V.  Mann,  15   Wend.   44;   Preston  v.  Tool   Co.   v.   Norris,    2   Wall.    (U.S.)   45; 

Bacon,  4  Conn.  471  ;  Shattuck  v.  Woods,  1  Coppell  v.  Hall,  7  Id.  542. 

Pick.  175  ;  Bassier  v.  Pray,  7  S.  &  R.  447 ;  '  See  ante,  p.  89,  note  1. 


OF    CONTRACTS.  90 

The  instance  above  given  of  a  bond  for  future  cohabitation  is  an 
example  of  a  contract  void  on  account  of  its  object  being  malum  in  se, 
or  morally  wrong.  In  the  same  manner,  no  action  can  be  maintained  on 
any  contract  for  the  sale  or  publication  of  any  libellous  or  *im-  p^Q^-, 
moral  book  or  print.(w)  A  striking  instance  of  a  contract,  void 
on  account  of  its  object  being  contrary  to  the  policy  of  the  common  law, 
occurs  in  the  case  of  a  contract  in  restraint  of  trade.  It  is  for  the  ad- 
vantage of  the  community  that  every  pers6n  should  be  allowed  the  full 
exercise  of  his  trade  or  profession  ;  and  any  contract  whereby  a  person 
is  attempted  to  be  restrained  from  following  his  usual  calling,  even  for  a 
limited  time,  is  therefore  absolutely  void. (2:)*  But  a  contract  is  not  ren- 
dered void  by  having  for  its  object  the  restraint  of  a  person  from  trading 
in  a  particular  place,(7/)  or  within  a  reasonable  distance  from  any  par- 
ticular place,(2)  for  he  may  carry  on  his  trade  elsewhere  ;  nor  is  a  con- 

(?<)  Forces  v.  Johnes,  4  Esp.  97  ;  Stockdale  v.  Onwhyn,  5  B.  &  C.  173  (E.  C.  L.  R.  vol. 
11)  ;  s.  c.  7  D.  &  R.  625 ;  Lawrence  v.  Smith,  Jac.  471. 

(z)  Year  Book,  P.  2  Hen.  V.  pi.  26  ;  Ward  v.  Byrne,  5  M.  &  W.  548 ;  Hind  v.  Gray,  1 
M.  &  G.  195  (E.  C.  L.  R.  vol.  39). 

(y)  Hitchcock  v.  Coker,  6  Ad.  &  E.  438  (E.  C.  L.  R.  vol.  33)  ;  s.  c.  1  N.  &  P.  796; 
Archer  v.  Marsh,  6  Ad.  &  E.  959  (E.  C.  L.  R.  vol.  33)  ;  s.  c.  2  N.  &  P.  562  ;  Leighton  v. 
Wales,  3  M.  &  W.  545. 

(z)  Davis  V.  Mason,  5  Term  Rep.  118  ;  Proctor  v.  Sergeant,  2  M.  &  G.  20  (E.  C.  L.  R. 
vol.  40);  s.  c.  2  Scott,  N.  R.  289;  Whittaker  v.  Howe,  3  Beav.  383;  Pemberton  v. 
Vaughan,  10  Q.  B.  87  (E.  C.  L.  R.  vol.  59)  ;  Atkyns  v.  Kinnier,  4  Ex.  Rep.  776  ;  Elves 
V.  Crofts,  10  C.  B.  241  (E.  C.  L.  R.  vol.  70)  ;  Avery  v.  Langford,  1  Kay  663,  667,  where 
the  cases  are  collected  ;  Harms  v.  Parsons,  32  Beav.  328;  Brampton  v.  Beddoes,  13  C. 
B.  N.  S.  538  (E.  C.  L.  R.  vol.  106). 

1  A  contract  in  restraint  of  trade  is  only  345;  Perkins  v.  Lyman,  9  Mass.  522. 
held  to  be  void  when  such  an  agreement  Stearns  v.  Barrett,  1  Pick.  443;  Lawrence 
is  against  public  policy  ;  if,  therefore,  the  v.  Kidder,  10  Barb.  S.  C.  641  ;  Mott  v.  Mott, 
stipulations  of  the  contract  are  such  as  to  11  Id.  127;  Gilman  v.  Dwight,  13  Gray 
occasion  no  serious  detriment  to  the  inter-  396;  Duffy  v.  Shockey,  11  Ind.  70  ;  Gras- 
est  of  the  public,  the  agreement  will  be  selli  v.  Lowden,  11  Ohio  N.  S.  349;  Oali- 
binding ;  as,  for  example,  a  covenant,  fornia  Steam  Nav.  Co.  v.  Wright,  6  Cal. 
made  by  one  not  to  carry  on  a  trade  258;  Kinsman  v.  ^arkhurst,  18  How.  U.  S. 
within  a  specific  and  limited  locality,  or  289;  Whitney  v.  Slayton,  40  Maine  224; 
during  a  time  limited,  or  otherwise  par-  Van  Marter  ?;.  Babcock,  23  Barb.  633;  Al- 
tial  in  its  operation,  if  based  upon  a  con-  cock  v.  Giberton,  5  Duer  76  ;  Herchew  v. 
sideration  otherwise  legal,  is  valid,  be-  Hamilton,  3  Iowa  596  ;  Kellogg  v.  Larkin, 
cause  it  is  not  considered  of  disadvantage  3  Chand.  133  ;  Laubenheimer  v.  Mann,  17 
to  the  public  generally.  For  a  full  con-  Wis.  542;  Warren  d.  Jones,  51  Maine  146; 
sideration  of  this  point,  see  the  following  Clark  v.  Crosby,  37  Vt.  188  ;  Hard  v.  See- 
cases,  which  are  believed  to  be  the  princi-  ley,  47  Barb.  428:  Keeler  v.  Taylor,  53 
pal  of  the  American  decisions  on  the  Penn.  St  467  ;  McClurg's  Ap.,  58  Id.  51  ; 
question:  Pierce  »'.  Fuller,  8  Mass.  223;  Taylor  i;.  Blanchard,  13  Allen  (.Mass.)  370  ; 
Palmer  v.  Stebbins,  3  Pick.  188  ;  Cuppell  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co., 
V.  Brockway,  21  Wend.  158  ;  Ross  v.  Sady-  28  Leg.  Int.  156  ;  Wright  v.  Rider,  36  Cal. 
beer,  Id.  166  ;  Bowser  v.  Bliss,  7  Blackf.  342. 


91  OF   CHOSES    IN   ACTION. 

tract  void  vrhich  restrains  a  person  from  serving  a  particular  class  of 
custouiers(a)  (for  there  are  plenty  of  others  to  be  found),  or  which  binds 
a  person  to  be  the  servant  for  life  in  his  trade  to  another,(6)  for  this 
is  not  in  restraint  of  trade  when  it  is  to  be  carried  on  for  his  life.  In  a 
recent  case(6')  a  person  agreed  that  he  would  become  assistant  to  a  den- 
tist for  four  years,  and  that  after  the  expiration  of  that  term  he  would 
r*Qo-|  not  carry  on  the  business  *of  a  dentist  in  London,  or  any  of  the 
^  towns  or  places  in  England  or  Scotland  where  the  dentist  might 

have  been  practising  before  the  expiration  of  the  service.  And  it  was 
held  that  the  covenant  not  to  practise  in  London  was  valid ;  but  that  the 
stipulation  as  to  the  other  towns  and  places  in  England  or  Scotland  was 
void.  And  according  to  the  rule  above  mentioned, (t?)  that  where  some 
of  the  objects  of  a  contract  are  lawful  and  others  unlawful,  the  unlawful 
objects  will  not  vitiate  the  others,  it  was  held  that  the  stipulation  as  to 
practising  in  London  was  not  affected  by  the  illegality  of  the  remainder 
of  the  agreement. 

The  cases  in  which  contracts  may  be  void  in  consequence  of  their  con- 
travening some  acts  of  parliament  are  too  numerous  to  be  here  specified. 
As  an  instance  may  be  mentioned  contracts  by  clergymen  holding  bene- 
fices with  cure  of  souls,  made  for  the  purpose  of  charging  such  benefices 
with  any  sum  of  money ;  which  contracts  are  rendered  void  by  a  statute 
of  Elizabeth. (e)  And  in  these  cases  it  has  been  held  that  any  personal 
covenant  for  the  payment  of  the  money  charged  is  not  invalidated  by 
being  contained  in  the  same  deed  as  the  attempted  charge  on  the  bene- 
fice.(/)  Contracts  for  the  sale  or  transfer  of  stock,  of  which  the  person 
contracting  was  not  possessed  at  the  time,  and  of  which  no  transfer  was 
intended  to  be  made,  Avere  formerly  void  by  the  Stock  Jobbing  Act  ;(^) 

(ff)  Rannie  v.  Irvine,  1  M.  &  G.  969  (E.  C.  L,  R.  vol.  49). 

(b)  Wallis  V.  Day,  2  M.  &  W.  2'.-3. 

(cj  Mallan  v.  May,  11  M.  &  W.  C53.  See  also  Green  v.  Price,  13  M.  &  W.  695,  affirmed, 
16  M.  &  W.  346;  Nicholls  v.  Slretton,  10  Q.  B.  346  (E.  C.  L.  R.  vol.  59). 

(d)  Anle,i).  90. 

(«)  Stat.  13  Eliz.  c.  20.  See  Shaw  v.  Pritchard,  10  B.  &  C.  241  (E.  C.  L.  R.  vol.  21)  ; 
Long  V.  Storie,  3  De  G.  &  S.  308. 

(/)  Monys  v.  Leake,  8  Term  Rep.  411  ;  Sloane  v.  Packman,  11  M.  &  W.  V70. 

{ff)  Stat.  1  Geo.  II.  c.  8,  s.  8.     See  post,  the  chapter  on  Stock. 

1  This   subject   does   not   seem  to   have  an  act  of  the  legislature  of  May  22,  1841' 

been  considered  of  sufficient  importance  in  that  "  If  any  person  or  persons  whatsoever 

several  of     lie    United  States,  to  require  shall  make  or  enter  into  any  contract  or 

statutory    regulation.      In    Pennsylvania,  agreement,   written  or   oral,  for  the    pur- 

however,  it  was  enacted  by  the  6th  sec.  of  chase,  receipt,  sale,  delivery  or  transfer  of 


OF    CONTRACTS. 


92 


and  money  lent  for  the  purpose  of  settling  losses  which  had  arisen  from 
such  illegal  contracts  could  not  be  recovered  back. (A)  But  this  act  is 
now  repealed. (z)  Securities  for  money  won  at  play  *or  any  game,  r:|;qq-i 
or  by  betting  on  any  game,  or  for  money  lent  for  gaming  or  bet- 
ting at  the  time  and  place  of  such  play,  were  declared  by  a  statute  of 
Anne  to  be  utterly  void;(A;)^  but  by  a  later  statute(Z)  such  securities  are 

(h)   Cannan  v.  Bryce,  3  B.  &  Aid.  119  (E.  C.  L.  R.  vol.  5). 

(i)  Stat.  23  Vict.  c.  28.  (k)   Stat.  9  Anne,  c  14. 

(l)  5  <fe  6  Will.  IV.  c.  41 ;  Hawker  v.  Hallewell,  3  Sin.  &  G.  194. 


any  public  loan  or  stock,  or  the  stock  of 
any  corporation,  institution  or  company, 
or  other  security  in  the  nature  thereof,  or 
of  any  share  or  interest  in  any  such  loan 
or  stock,  or  in  the  stock  of  any  such  cor- 
poration, institution  or  company,  or  other 
security  in  the  nature  thereof,  or  any  bill, 
notes  or  other  obligations  of  any  corpora- 
tion, institution  or  company,  created  or 
authorized,  or  that  may  be  hereafter  cre- 
ated or  authorized  as  aforesaid,  in  which 
contract  or  agreement  it  may  be  stipulated 
or  understood  between  the  parties  there- 
unto, his,  her  or  their  agent  or  agents,  that 
the  same  may  be  executed  or  performed  at 
any  future  period,  exceeding  five  judicial 
days  next  ensuing  the  date  of  such  con- 
tract or  agreement;  then,  and  in  every 
such  case,  such  contract  or  agreement 
shall  be  and  the  same  is  hereby  declared 
to  be  null  and  void,"  &c. :  Purd.  Dig. 
(1861)  127.  But  this  section  has  been  re- 
pealed by  the  Act  of  the  I7th  of  April, 
1862:   Purd.  Dig.  Suppl.  1266. 

And  in  New  York  it  was  formerly  the 
law  that  "  all  contracts,  written  or  verbal, 
for  the  sale  or  transfer  of  any  certificate, 
or  other  evidence  of  debt  due,  by  or  from 
the  United  States,  or  any  separate  State, 
or  of  any  share  or  interest  in  the  stock  of 
any  bank  or  of  any  company  incorporated 
under  any  law  of  the  United  States,  or  of 
any  individual  State,  sliall  be  absolutely 
void,  unless  the  party  contracting  to  sell 
or  transfer  the  same  shall,  at  the  time  of 
making  such  contract,  be  in  actual  posses- 
sion of  the  certificate  or  other  evidence  of 
such  debt,  share  or  interest,  or  be  other- 
wise entitled  in  his  own  right,  or  be  duly 
authorized  by  some  person  so  entitled,  to 


sell  or  transfer  the  said  certificate  or  other 
evidence  of  debt,  share  or  interest,  so  con- 
tracted for:"  Rev.  Stat,  of  N.  Y.,  vol.  i.  p. 
892.  But  this  law  has  also  been  repealed: 
Rev.  Stat,  of  N.  Y.,  vol.  ii.  p.  980. 

1  Statutes  against  gaming  exist  in  almost 
all  the  states  in  the  Union  ;  and  even  in 
those  states  where  all  betting  and  gaming 
has  not  been  prohibited  by  statute,  the 
judiciary  have  decided  that,  where  it  is  of 
an  immoral  tendency,  or  detrimental  to 
public  policy,  it  is  unlawful :  Bevil,  &c.,  v. 
Hix,  12  B.  Mon.  142  ;  Hickerson  v.  Benson 
et  al.,  8  Mo.  8;  Sisk  v.  Evans,  Id.  52; 
Dewes  v.  Miller,  5  Harring.  347  :  Trenton 
Ins.  Co.  V.  Johnson,  Zabr.  576  ;  McDougall 
V.  Walling,  48  Barb.  364;  St.  Ceran  ». 
Sherman,  18  La.  Ann.  520  ;  Porter  v.  Saw- 
yer, 1  Harring.  517;  in  this  last  case,  the 
chief  justice  remarks,  "  As  a  general  pro- 
position, it  is  lawful  to  bet.  Contracts  of 
this  kind  may  be  entered  into,  and  the 
obligations  arising  from  such  contracts 
must  be  enforced  by  courts  and  juries,  if 
they  be  not  such  as  to  affect  the  good  of 
society,  corrupt  public  morals,  or  infringe 
upon  the  private  rights  or  feelings  of  third 
persons."  Thus,  a  bet  on  the  age  of  a 
lady,  or  the  sex  of  a  person,  or  the  issue 
of  a  general  election,  whilst  pending, 
"  would,  undoubtedly,  be  illegal,  as  being 
against  public  policy,  and  hurtful  to  so- 
ciety." For  a  further  consideration  of  the 
statutes  against  gaming,  and  the  construc- 
tion placed  upon  them  by  the  courts  of 
the  several  states,  see  the  following  cases: 
Finn  et  al.  v.  Barclay  et  al.,  15  Ala.  627  ; 
Manning  v.  Manning,  8  Id.  138 :  Givens  v. 
Rogers,  11  Id.  543;  Stone  v.  MitcheU,  2 
Eng.  91 ;  Abrams  et  al.  v.  Camp,  3  Scam. 


93  OF    CIIOSES    IN    ACTION. 

not  to  be  utterly  void,  but  are  to  be  taken  to  have  been  given  for  an 
illegal  consideration ;  they  are  consequently  now  void  only  as  between 
the  parties,  but  valid  in  the  hands  of  any  innocent  holder,  to  whom  they 
may  have  been  transferred  without  notice  of  the  illegality  of  the  trans- 
action in  wliieh  they  originated. (w)  And  by  a  more  recent  statute(?i)  it 
is  enacted,  that  all  contracts  or  agreements,  whether  by  parol  or  in 
writing,  by  way  of  gaming  or  wagering,  shall  be  null  and  void;  and  that 
no  suit  shall  be  brouglit  or  maintained  in  any  court  of  law  or  equity  for 
recovering  any  sum  of  money  or  valuable  thing  alleged  to  be  won  upon 
any  wager,  or  which  shall  have  been  deposited  in  the  hands  of  any  person 
to  abide  the  event  on  which  any  wager  shall  have  been  made.  But  this 
enactment  is  not  to  apply  to  any  subscription  or  contribution,  or  agree- 
ment to  subscribe  or  contribute,  for  or  towards  any  plate,  prize  or  sum 
of  money  to  be  awarded  to  the  winner  or  winners  of  any  lawful  game, 
sport,  pastime  or  exercise.  Contracts  for  the  payment  of  money,  Avhereby 
there  should  be  reserved  more  than  five  per  cent,  interest,  were  in  like 
manner  declared  void  by  a  statute  of  Anne,  called  the  Usury  LaAv;(c>) 
but  in  order  to  protect  innocent  holders  of  securities  given  for  usurious 
consideration,  it  was  subsequently  declared  that  such  contracts  should  not 
be  absolutely  void,  but  should  be  considered  to  have  been  made  for  an 
illegal  consideration. (p)  However,  by  a  statute  of  the  reign  of  King 
r*Q4.l  William  the  Fourth, (^)  it  *was  provided  that  no  bill  of  exchange 
or  promissory  note  made  payable  at  or  within  three  months  after 
the  date  thereof,  or  not  having  more  than  three  months  to  run,  should 
be  void  by  reason  of  any  interest  taken  thereon  or  secured  thereby,  or 
any  agreement  to  pay  or  receive  or  allow  interest  in  discounting,  nego- 
tiating or  transferring  the  same.     And  by  a  subsequent  statute,(r)  all 

(to)   See  ante,  p.  87.  (n)  Stat.  8  &  9  Vict.  c.  109,  s.  18. 

(o)  Stilt.  12  Anne,  st.  2,  c.  16.  {p)  Stat.  5  &  6.  Will  IV.  c,  41. 

{q)  Stat.  3  &  4  Will.  IV.  c.  98,  s.  7.  (r)  2  &  3  Vict.  c.  37. 


290;  Parsons  v.  The  State,  2  Port.  (Ind.)  et  al.,  9  Ired.  378  ;  Bledsoe  v.  Thompson, 
499  ;  Danforth  v.  Evaus,  16  Vt.  538  ;  Mu-  6  Richard.  44;  Rice  v.  Gist,  1  Strobh.  82; 
reau  v.  Langlej  et  al.,  21  Maine  26;  Bevil,  Russell  v.  Pyland,  2  Humph.  131  ;  Swag- 
Ac,  V.  Hix,  12  B.  Mon.  142;  McKinney  v.  gerty  v.  Stokely,  1  Swan  38  ;  Tarleton  v. 
Pope's  Admr.  3  Id.  93;  Lytle  f.  Lindsay,  Baker,  18  Vt.  9;  Watson  v.  Fletcher,  7 
Id.  125;  Ellis  r.  Beale,  18  Maine  337  ;  Doyle  Gratt.  19;  Machir  v.  Moore,  2  Id.  257; 
r.  The  Commissioners  of  Baltimore  County,  Commonwealth  v.  Robbins,  26  Penn.  St. 
12' Gill  &  Johns.  484  ;  Amory  v.  Gilman,  165  ;  Collins  v.  Merrell,  2  Mete.  (Ky.)  163; 
2  Mass.  1;  White  v.  Buss,  3  Cush.  448;  Mallett  t>.  Butcher,  41  111.382;  Knight  v. 
Williams  v.  Woodman,  8  Pick.  78  ;  Terrall  Gregg,  26  Texas  506 ;  Welsh  v.  Cutler,  44 
V.  Adams,  23  Miss.  570  ;  Rush  v.  Gott,  9  N.  H.  561  ;  Barnes  v.  Turner,  4  Mete.  (Ky.) 
Cowen  173  ;  Rrown  v.  Riker,  4  Johns.  438  ;  114. 
Collins  V.  Ragrew,  15  Id.  5  ;   Slate  v.  Black 


OF    CONTRACTS. 


94 


bills  of  exchange  and  promissory  notes  made  payable  at  or  within  twelve 
months  after  the  date  thereof,  or  not  having  more  than  twelve  months  to 
run,  and  all  contracts  for  the  loan  or  forbearance  of  money  above  the 
sum  of  101.  sterling,  were  exempted  from  the  operation  of  the  Usury 
Law.^  Nothing,  however,  contained  in  the  last-mentioned  act  Avas  to 
extend  to  the  loan  or  forbearance  of  any  money  upon  security  of  any 
lands,  tenements  or  hereditaments,  or  any  estate  or  interest  therein. 
And  now,  by  an  act  passed  on  the  10th  of  August,  1854,(s)  all  the  laws 
against  usury  are  repealed.  But  where  interest  is  now  payable  upon 
any  contract,  express  or  implied,  for  payment  of  the  legal  or  current 
rate  of  interest,  or  where  interest  is  payable  by  any  rule  of  law,  the 
same  rate  is  recoverable  as  before  the  act.(^) 

The  above  enactments  are  perhaps  the  most  important  statutory  pro- 
visions by  which  contracts  may  be  vitiated.  Contracts  whose  objects  are 
lawful  are  endlessly  diversified,  and  many  of  them  are  regulated  by  laws 


(s)  Stat.  17  &  18  Vict.  c.  90. 

1  The  rate  of  interest  established  by  law 
in  the  several  states  is  as  follows:  In 
Maine,  New  Hampshire,  Vermont,  Massa- 
chusetts, Rhode  Island,  Connecticut,  Penn- 
sylvania, Delaware,  Maryland,  Virginia, 
West  Virginia,  North  Carolina,  Tennessee, 
Kentucky,  Ohio,  Indiana,  Illinois,  Missouri, 
Arkansas,  Iowa  and  Mississippi,  six  per 
cent,  per  annum  ;  in  New  Jersey,  Michi- 
gan, Wisconsin,  Georgia,  Minnesota,  New 
York  and  Kansas,  seven  per  cent. ;  in  Ala- 
bama, Florida  and  Texas,  eight  per  cent. ; 
in  Louisiana,  five  per  cent,  per  annum  ;  and 
in  California,  Nevada  and  Oregon,  ten  per 
cent.  It  does  not,  however,  necessarily 
follow,  that  every  contract  by  which  a 
greater  rate  of  interest  is  reserved,  than 
what  is  allowed,  by  law,  is  usurious,  for  in 
some  states,  more  than  the  amount  of  in- 
terest specified  in  the  statute  may  be  taken, 
by  specific  agreement  between  the  parties- 
as  in  Louisiana,  eight  per  cent,  per  annum 
may  be  reserved  and  taken,  if  it  be  agreed 
upon  between  the  parties  ;  in  Illinois, 
Iowa,  Wisconsin,  Missouri,  Tennessee, 
Nevada,  Indiana  and  Michigan,  ten  per 
cent;  in  Minnesota,  Virginia,  Kansas  and 
Texas,  twelve  per  cent,  per  annum,  by  a 
like  arrangement ;  and  in  Arkansas,  Cali- 


(t)  Sect.  3. 


fornia,  Massachusetts,  Rhode  Island  and 
Nevada,  any  rate  of  interest  specified  in 
writing  is  legal  ;  while  in  South  Carolina, 
there  is  no  interest  law,  but  the  interest  is 
regulated  by  the  contract,  and  when  not 
so  specified,  it  is  by  custom  seven  per  cent. 

The  penalties  and  forfeitures  for  usury, 
are  different  in  the  different  states ;  in 
some  instances,  three  times  the  usurious 
interest  is  forfeited,  in  others  the  usurious 
interest  only.  A  distinction,  also,  is  to  be 
noticed  between  an  agreement  to  take 
usurious  interest,  and  the  actual  taking  of 
it,  the  latter  only  having  been  held  in 
some  states  to  be  within  the  statutes  of 
usury,  and  the  agreement  valid  for  prin- 
cipal and  lawful  interest. 

See  generally,  on  the  subject  of  this 
note  :  Gen.  Stats.  N.  H.  (1867)  c.  213,  s.  2, 
p.  433  ;  McGehee  v.  George,  38  Ala.  323  ; 
Pauska  v.  Daus,  31  Texas  67 ;  Gen.  Stat. 
Kansas  (1868)  c.  51,  s.  1  &  2,  p.  525; 
Oatlin  V.  Knott,  2  Oregon  321  ;  Williams  v. 
Glasgow,  1  Nev.  St.  537 ;  1  Wagner's 
Misso.  Stat.,  p.  782-3;  as  to  Tennessee, 
Ellis  V.  Branan,  1  Duval  (Ky.)  49  ;  as  to 
Delaware  and  Florida,  4  Am.  L.  Reg.  (N. 
S.)  323  note  ;  and  forthe  remaining  states, 
25  Bankers'  Magazine,  tit.  "  Maine,"  &c. 


94  OF    CHOSES    IN    ACTION. 

which  it  is  not  within  the  scope  of  the  present  work  to  enumerate.  For 
the  breach  of  anj  such  contract  pecuniary  damages  are,  as  we  have 
seen,(w)  the  sovereign  remedy  prescribed  by  law,  though  equity  not  unfre- 
quently  administers  more  appropriate  specifics.  The  person  to  whom 
money  has  become  due,  whether  from  any  injury  received,  or  from  any 
contract  broken,  or  from  a  contract  to  pay  money  itself,  stands  in  a 
P^q.-|  situation  more  or  less  advantageous  *as  regards  his  remedies  for 
recovering  the  money,  according. to  the  nature  of  the  debt  which 
has  thus  become  due  to  him.  For  by  the  law  of  England  all  creditors 
are  not  allowed  equal  rights,  but  are  preferred  the  one  to  the  other, 
partly  according  to  accidental  circumstances,  and  partly  according  to 
the  degree  of  diligence  and  precaution  which  each  may  have  used. 
The  subject  of  debt  is  of  sufficient  importance  to  form  a  separate  chapter. 

(w)  Ante,  p.  G3. 


*CHAPTER   III. 


[*96] 


OF   DEBTS. 


Debts,  by  the  law  of  England,  are  divided  into  different  classes,  con- 
ferring on  the  creditor  different  degrees  of  security  for  re-payment.  The 
class  which  confers  the  highest  privileges  is  that  of  debts  of  record,  which 
class  will  accordingly  first  claim  our  attention. 

A  debt  of  record  is  a  debt  due  by  the  evidence  of  a  court  of  record.(a) 
Every  court,  by  having  power  given  to  it  to  fine  and  imprison,  is  thereby 
made  a  court  of  record. (6)'  Such  courts  are  either  supreme,  superior 
or  inferior.  The  supreme  court  is  the  Parliament.  The  superior  courts 
of  record  are  the  House  of  Lords,  the  Court  of  Chancery,  and -the 
Courts  of  Queen's  Bench,  Common  Pleas  and  Exchequer,  which  are  the 
more  principal  courts.  The  courts  of  the  Counties  Palatine  of  Lancaster 
and  Durham  are  also  superior  courts  of  Yecord.(c)  The  Court  of  Bank- 
ruptcy and  its  district  courts,  and  every  commissioner  thereof,  also 
exercise  and  enjoy  all  the  powers  and  privileges  of  a  court  of  record  as  fully 
as  the  courts  of  law  at  Westminster.((i)  The  Court  of  Probate  is  also  a 
court  of  record  ;(e)  and  so  is  the  High  Court  of  Admiralty.(/)  The 
inferior  courts  of  record  may  be  said,  generally,  to  consist  of  the  numer- 
ous courts  established  throughout  the  country,  under  the  acts  for  the  more 


(a)   2  Black.  Com.  465. 

(c)  Ibid.  (D)  1. 

(e)  Stat.  20  &  21  Vict.  c.  77,  s.  23. 


{b)  Bac.  Abr.  tit.  Courts  (D)  2. 
(d)  Stat.  32  &  33  Vict.  c.  71,  s.  65. 
(/)  Stat.  24  Vict.  c.  10,  s.  14. 


^  By  Article  Third  of  tlie  Constitution  of 
the  United  States,  the  judicial  power  is 
vested  in  one  Supreme  Court,  and  in  such 
inferior  Courts  as  Congress  shall  from 
time  to  time  establish.  And  in  pursuance 
of  the  powers  thus  granted,  the  several 
District  and  Circuit  Courts  of  the  United 
States  have  been  established  by  Acts  of 
Congress. 

The  judicial  power  of  the  several  states, 


is  in  like  manner  vested  in  such  Courts  as 
are  created  and  organized  under  the  Con- 
stitution and  Laws  of  each  state.  These 
are  either  appellate  or  inferior.  In  ques- 
tions which  arise  under  the  Constitution 
of  the  United  States,  an  appeal  may  be 
taken  from  the  judgment  of  the  Supreme 
Court  of  a  State  to  the  Supreme  Court  of 
the  United  States. 


96  OF   CIIOSES    IN   ACTION. 

r*Q7-i    GASj  recovery  *of  small  debts  and  demands  in  England,  now  called 
'-       -'    the  County  Courts  Acts.(^) 

Debts  of  record  do  not,  however,  confer  the  same  advantages  on  all 
creditors  equally,  for  there  is  one  creditor  whose  claims  are  paramount 
to  all  others,  namely,  the  crown.  In  order  to  enjoy  this  priority,  the 
crown  debt  was  formerly  required  to  be  a  debt  of  record,  or  a  debt  by 
specialty,  that  is,  secured  by  deed  ;{h)  though  if  the  debt  were  by  simple 
contract  without  such  security,  it  would  have  had  preference  over  the 
other  simple  contract  creditors  of  the  debtor,  and,  as  some  say,  even 
over  other  creditors  by  specialty.(iy  But  the  distinction  which  formerly 
existed  between  specialty  and  simple  contract  debts  has  been  abolished 
by  a  recent  statute,(^)  which  reduces  all  specialty  debts  to  the  level  of 
debts  by  simple  contract.  It  seems,  therefore,  that  a  simple  contract 
debt  to  the  crown  would  now  prevail  over  a  specialty  debt  due  to  a  pri- 
vate person.  The  lien  of  the  crown  on  the  lands  of  its  debtors  by  record 
or  specialty,  and  also  on  the  lands  of  accountants  to  the  crown,  is  men- 
tioned in  the  author's  Treatise  on  the  Principles  of  the  Law  of  Real 
Property. (?) 

Of  all  debts  which  one  subject  may  owe  to  another,  that  which  con- 
fers the  most  important  remedy  is  a  judgment  debt,  or  a  debt  which  is 
due  by  the  judgment  of  a  court  of  record.  As  such  a  debt  is  due  by  the 
r*q«1  evidence  of  a  court  of  record,  it  is  of  course  a  debt  of  record. 
'-  '  -'  *Such  a  debt  may  however  now  be  incurred  without  any  actual 
exercise  of  judgment  on  the  part  of  the  court.  For,  strange  as  it  may 
appear,  a  judgment  against  a  defendant  in  an  adverse  suit,  though  the 
most  obvious,  is  yet  not  the  most  usual  method  of  incurring  a  judgment 
debt.     Such  a  debt  may  be  incurred  by  the  voluntary  default  of  the  de- 

(ff)  Stats.  9  &  10  Vict.  c.  95,  s.  3  ;  12  &  13  Vict.  c.  101  ;  13  &  14  Vict.  c.  61 ;  15  &  16 
Vict.  c.  54  ;  17  &  18  Vict.  c.  16 ;  19  &  20  Vict.  c.  108  ;  21  &  22  Vict.  c.  74;  22  &  23  Vict, 
c.  57  ;  28  &  29  Vict.  c.  99  ;  29  &  30  Vict.  c.  14 ;  30  &  31  Vict  c.  142 ;  31  &  32  Vict.  c. 
71  ;  32  &  33  Vict.  c.  51. 

(k)  Williams  on  Executors,  pt.  3,  bk.  2,  ch.  2,  s.  1. 

(i)   Bac.  Abr.  tit.  Executors  (L)  2.  (k)  Stat.  32  &  33  Vict.  c.  46. 

{I)  Page  62,  1st  cd.  ;  65,  2d  ed. ;  70,  3d  &  4tb  eds.  ;  76,  5th  ed.  ;  81,  6th  ed.  ;  84,  7th 
ed.  ;  85,  8lh  ed. 


1  The    common-law   prerogative   of  the  necticut ;    in    does    not  subsist    in    South 

king,  to  be  paid  in  preference  to  all  other  Carolina:  1  Kent  Com.  pp.  243  to  248,  and 

creditors,   is    not    universally    adopted  in  notes.     For  the  law  of  Pennsylvania   on 

this  country.     It  prevails  in  the  govern-  this  subject,  see  Purd.  Dig.  (1861)  p.  284; 

ment  of  the  United  States,  and  in  Mary-  Ramsey's  Ap.,  4  Watts  73  ;  Arnold's  Estate, 

land,  North  Carolina,  Indiana,  and  Con-  46  Penn.  St.  277. 


OF   DEBTS.  98 

fendant  in  making  no  reply  to  the  action,  which  is  called  niJdl  dunt,  or 
by  his  failing  to  instruct  his  attorney,  whose  statement  of  that  circum- 
stance is  called  no7i  sum  informatus,  or  by  a  cognovit  actionem,  or  more 
shortly  cognovit,  by  which  the  defendant  confesses  the  action,  and  suffers 
judgment  to  be  at  once  entered  up  against  him.(wi)  Of  late  years  also 
it  has  become  very  usual  for  the  parties  to  a  suit  to  obtain  by  consent  a 
judge's  order,  authorizing  the  plaintiff  to  enter  up  judgment  against  the 
defendant,  or  to  issue  execution  against  him,  either  at  once  and  uncondi- 
tionally, or  more  usually  at  a  future  time,  conditionally  on  the  non-pay- 
ment of  whatever  amount  may  be  agreed  on.  A  judgment  obtained  on 
a  judge's  order  for  immediate  judgment  and  execution  is  howev^er  the 
same  thing  as  a  judgment  by  nildl  dicit,  or  confession. (w)  The  method 
formerly  the  most  frequent  of  incurring  a  judgment  debt  is  not  however 
attended  with  the  actual  commencement  of  any  adverse  action.  A 
warrant  of  attorn  eg  is  given  by  the  intended  debtor,  which  consists  of  an 
authority  from  him  to  certain  attorneys  to  appear  for  him  in  court,  and 
to  receive  a  declaration  in  an  action  of  debt  for  the  amount  of  the  in- 
tended judgment  debt,  at  the  suit  of  the  intended  creditor,  and  thereupon 
to  confess  the  action,  or  suffer  judgment  to  go  by  default,  and  to  permit 
judgment  to  be  forthwith  entered  up  against  the  intended  debtor  for  the 
amount,  besides  costs  of  suit.'     Such  a  warrant  of  attorney  is  generally 

(to)  3  Black.  Com.  397  ;  Stephen  on  Pleading  120. 

(n)  Bell  V.  Bidgood,  8  C.  B.  7«3  ;  Andrews  v.  Diggs,  4  Ex.  Rep.  827. 

1  In  New  York,  judgments  on  warrants  a  warrant  to  enter  judgment  be  above 
of  attorney,  may  be  entered  within  a  year  ten  years  old,  and  less  than  twenty,  appli- 
and  a  day  of  the  date  of  the  warrant,  as  a  cation  must  be  made  to  a  judge  for  leave 
matter  of  course;  after  that  time,  and  to  enter  judgment,  founded  on  an  affidavit 
within  ten  years,  an  order  of  the  court,  or  of  the  due  execution  of  the  warrant,  and 
of  a  judge  at  chambers,  must  be  obtained  ;  that  the  money  is  unpaid,  and  that  the 
between  ten  and  twenty  years  after  date,  defendant  is  living.  If  the  warrant  of  attor- 
judgment  can  only  be  entered  by  order  of  ney  be  above  twenty  years  old,  a  rule  to 
court ;  and  after  twenty  years,  the  order  show  cause  must  be  obtained,  of  which, 
will  not  be  made,  unless  a  rule  to  show  notice  must  be  given,  if  the  defendant  be 
cause  is  first  had,  and  notice  given  to  the  within  the  State  of  Pennsylvania."  For 
opposite  party,  if  within  the  reach  of  ser-  analogous  provisions  see  Hinds  v.  Hop- 
vice  :  Manufacturers'  and  Mechanics'  Bank  kins,  28  111.  344. 

of  the  Northern  Liberties  in  the  County  of  There  can  be  but  one  judgment  entered 

Philadelphia  v.  St.  John,  5  Hill  497  ;  and  on  a  warrant  of  attorney  to  confess  judg- 

soraetimes,  the  court  will  refuse  to  allow  a  ment :  Campbell  v.  Kent,  3   Penna.  R.  72  ; 

judgment  to  be  entered  on    a    bond    and  Ely  r.  Karmany,  23  Penn.  St.  314 ;  but  the 

warrant,  less  than  twenty  years  old,  upon  second    judgment     is    not    void,    though 

the    presumption    of    payment:    Exrs.    of  clearly  irregular  :  Nelf  et  al.  n.  Burr,  14  S. 

Clark  V.  Hopkins,  7  Johns.  556  ;    upon  a  &  R.  166  ;  Ulrich,  with  notice,  Ac,  v.  Vo- 

similar  principle,  a  rule  of  the   Supreme  neida,  1  Penna.  R.  245  ;  Campbell  t-.  Canon, 

Court  of  Pennsylvania  provides,  that,  "  If  Add.   2G7  ;  Adams  v.  Bush,  2  Watts  289  ; 


98 


OF   CHOSES   IN   ACTION, 


r*QQn    executed  as  a  *security  for  a  smaller  sum  of  money,  usually  one- 
•-       -'    half  of  the  amount  of  the  judgment  debt ;   and  it  is  accordingly 


Fairchild  v.  Camac,  3  "Wash.  C.  C.  558; 
and,  therefore,  where  two  or  more  are 
jointly  and  severally  bound,  and  judg- 
ment be  entered  against  one  on  warrant, 
he  cannot  be  joined  with  the  others  in  a 
second  judgment  against  all  the  defend- 
ants :  Manufacturers'  and  Mechanics'  Bank 
of  the  Northern  Liberties  in  the  County  of 
of  Philadelphia  v.  Cowden  et  al.,  3  Hill 
461  ;  Averill  v.  Loucks,  6  Barb.  S.  C. 
19. 

By  agreement  between  the  parties,  a 
judgment  on  warrant  may  cover  future 
advances  of  money  ;  Chapin  v.  Clemitson, 
1  Barb.  S.  C.  311;  Averill  v.  Loucks,  6 
Id.  19  ;  Monell  v.  Smith  et  al.,  5  Cowen 
441 ;  Bank  of  Auburn  v.  Throop,  18  Johns. 
505  ;  Roosevelt  v.  Mark  et  al.,  6  Johns. 
Ch.  279  ;  Brinkerhofif  et  al.  v.  Marvin  et 
al.,  5  Id.  324  ;  Austin  et  al.  v.  Mclnlay,  16 
Johns.  165  ;  Holden  et  al.  v.  Bull,  1  Penna. 
R.  460  ;  Parmenter  v.  Gillespie,  9  Penn. 
St.  87  ;  Troup  v.  Wood,  4  Johns.  Ch.  247  ; 
St.  Andrews'  Ch.  v.  Thompson,  7  Id.  14  ; 
and  such  an  agreement  ought  to  be  as 
precise  as  a  bill  of  particulars,  and  must 
be  strictly  followed  :  Lawless  v.  Hackett, 
16  Johns.  149 ;  Chapin  v.  Clemitson,  1 
Barb.  S.C.  311  ;  Nelsons.  Sharp,  4  Hill  584; 
Nichols  V.  Hewitt,  4  Johns.  433  ;  and  where 
the  warrant  of  attorney  for  the  confession 
of  judgment,  was  to  be  exercised  upon  a 
certain  condition  or  contingency,  it  must 
appear  that  it  has  been  fulfilled:  Roundy 
I'.  Hunt,  24  111.  598  ;  Harwood  v.  Hildreth, 
4  Zabr.  51  ;  FuUerton's  Ap.,  46  Penn.  St. 
144. 

The  Court  will  not  set  aside  a  judgment 
entered  on  a  warrant  of  attorney,  merely 
on  account  of  irregularity  :  King  v.  Shaw, 
3  Johns.  142  ;  McFarland  v.  Irwin,  8  Id. 
77  ;  Ilaner's  Appeal,  5  W.  &  S.  473  ;  Lewis 
V.  Smith,  2  S.  &  R.  142  ;  Humphreys  v. 
Rawn,  8  Watts  78;  Roemer  v.  Denig,  18 
Penn.  St.  482  ;  but  if  a  warrant  of  attorney, 
made  under,  or  by  reason  of,  the  provisions 
of  a  certain  statute,  does  not  strictly  follow 
it,  the  judgment  will   be  void,  and  so  if 


the  warrant  has  been  obtained  for  an  un- 
lawful purpose,  or  upon  an  unlawful  con- 
sideration :  Ex  parte  Butler  et  al.  v.  Lewis, 
C.  P.  10  Wend.  541  ;  Judges  v.  The  People, 
15  Id.  110  ;  Everitt  v.  Knapp,  6  Johns.  331  ; 
Richmond  W.Roberts,  7  Id.  319;  Bennett 
V.  Davis  et  al.,  6  Cowen  393;  Bontel  v. 
Owens,  2  Sandf.  S.  C.  655  ;  The  Manhattan 
Co.  V.  Browcr,  1  Caines  511  ;  Evans  v. 
Begley,  2  Wend.  243;  Truscott  et  al.  v. 
King,  6  Barb.  S.  C.  346 ;  Humphreys  v. 
Rawn,  8  Watts  78  ;  Hutchinson  v.  McClure, 
20  Penn.  St.  63  ;  Davis  v.  Morris,  21  Barb. 
152;  Barrett  v.  Thompson,  5  Ind.  457; 
Richards  v.  McMillan,  6  Caines  419;  and 
a  judgment  entered  without  filing  the 
warrant,  or  formal  confession  of  defend- 
ant, will  be  set  aside  for  irregularity: 
Lytle  V.  Colts,  27  Penn.  St.  193  ;  Branning 
V.  Taylor,  24  Id.  289  ;  Jarrett  v.  Andrews, 

19  Ind.  403  ;  but  this  presupposes  that  a 
written  authority  has  been  given  to  enter 
judgment,  for  it  is  not  necessary  to  the 
validity  of  a  confession  of  judgment  made 
by  an  attorney  for  his  client,  that  his 
authority  should  be  in  writing :  Flanigen 
V.  City,  51  Penn.  St.  491  ;  Whelan's  Ap., 
57  Id.  331.  Where  there  is  a  dispute  about 
facts,  the  Court  will  direct  a  feigned  issue 
to  be  formed  :  Frazier,  Jr.,  v.  Frazier,  9 
Johns.  80;  Wintringham  v.  Wintringham, 

20  Id.  296  ;  Morey  v.  Shearer,  2  Cowen 
465;  Neff  et  al.  i-.  Burr,  14  S.  &  R.  166; 
Kindig  v.  March,  15  Ind.  248;  and  parol 
evidence  is  admissible  to  show  that  a 
judgment  on  a  warrant,  was  entered  after 
the  death  of  the  defendant:  38  Penn.  St. 
486. 

In  connection  with  the  subject  of  war- 
rants of  attorney,  the  case  of  the  Manf.  & 
Mec.  Bk.  of  Philadelphia  v.  St.  John,  5 
Hill  500,  deserves  notice  on  account  of  its 
singularity.  In  pronouncing  the  opinion 
of  the  Court,  Bronson,  J.,  says,  "The 
authority  to  confess  a  judgment  without 
process,  must  be  clear  and  explicit,  and 
must  be  strictly  pursued.  If  the  parties 
to    this   warrant   of    attorney   intend    to 


OF   DEBTS. 


99 


accompanied  by  a  defeazance,  whicli  must  be  "written  on  the  same  paper 
or  parchment  as  the  warrant  of  attorney,  otherwise  the  warrant  will  be 
void.(o)  This  defeazance,  as  its  name  imports,  defeats  the  full  operation 
of  the  warrant  of  attorney,  by  declaring  that  it  is  given  only  as  a  secu- 
rity for  the  smaller  sum  and  interest,  and  that  no  execution  shall  issue  on 
the  judgment  to  be  entered  up  in  pursuance  of  the  warrant  of  attorney, 
until  default  shall  have  been  made  in  payment  of  such  sum  and  interest 
at  the  time  agreed  on  ;  but  that,  in  case  of  default,  execution  may  be  is- 
sued.(jt?)  The  defeazance  also  until  recently  contained  an  agreement 
that  it  should  not  be  necessary  for  the  creditor  to  issue  a  writ  of  scire 

(o)  Reg.  Gen.  Hil.  1853,  s.  27  ;  stat.  3  Geo.  IV.  c.  39,  s.  4  ;  32  &  33  Vict.  c.  62,  s.  26. 
Collateral  securities  must  be  noticed,  Morell  v.  Dubost,  3  Taunt.  235. 

{p)  Warrants  of  attorney  to  confess  judgment  for  securing  any  sum  or  sums  of 
money  are,  with  some  exceptions,  liable  fo  the  same  duty  (one-eighth  per  cent,  on  the 
money  secured)  as  bonds  for  the  like  purpose.     Stat.  13  &  14  Vict.  c.  97.     Qte,  post.^ 


authorize  a  judgment  in  any  other  State 
than  Pennsylvania,  which  is  very  ques- 
tionable, I  think  that  they  did  not  intend 
that  a  judgment  should  be  entered  in  this 
State.  Both  the  bond  and  the  warrant 
describe  two  of  the  obligors  as  residents 
of  the  State  of  Pennsylvania,  the  third  as 
a  resident  of  New  Jersey.  The  warrant  is 
addressed  "  to  John  D.  Smith,  Esq.,  at- 
torney of  the  Court  of  Common  Pleas  of 
Philadelphia,  in  the  county  of  Phila- 
delphia, in  the  State  of  Pennsylvania,  or 
to  any  other  attorney  of  the  said  Court,  or 
of  any  other  Court,  there,  or  elsewhere,  or 
to  any  prothonotary  of  any  of  the  said 
Courts."  The  only  thing  which  can  carry 
the  power  beyond  the  Courts  at  "Phila- 
delphia," is  the  word  "elsewhere;"  and 
although,  if  the  parties  had  stopped  there, 
the  authority  might  have  extended  to  our 
Courts,  the  scope  of  the  word  "  elsewhere" 
is  restricted  by  the  words  which  imme- 
diately follow  it,  "or  to  a,nj prothonotary 
of  any  of  the  said  Courts.''^  This  shows 
that  the  parties  were  speaking  of  such 
Courts  as  had  an  officer  called  a  "  pro- 
thonotary," and  such  Coflrts  only.  The 
Pennsylvania  Courts  have  an  officer  of 
that  name,  but  we  have  not."  The  con- 
struction here  given  to  the  instrument  in 
question,  is  so  utterly  contrary  to  the 
known  and  long  received  reading  of  a  form 
9 


in  common  use  in  Pennsylvania,  and  to 
the  plain  meaning  of  the  words  used,  that 
it  is  difficult  to  understand  how  such  a 
decision  could  have  been  made. 

See  further  on  the  subject  of  warrants 
of  attorney,  and  judgment?  thereon,  the 
following  cases  :    Montelius  v.  Montelius, 

5  Penn.  L.  Jour.  92  ;  Helvete  v.  Rapp,  7 
S.  &  R.  306  ;  Commonwealth  to  the  use, 
&c.  V.  Conrad  et  al.,  1  Rawle  249 ;  Rabe  v. 
Heslip  et  al.,  4  Penn.  St.  139  ;  McCalmont, 
Admr.,  v.  Peters,  13  S.  &  R.  196;  Hays  v. 
The  Commonwealth,  14  Penn.  St.  39; 
Chambers  v.  Denie,  2  Penn.  St.  422  ;  Enew 
V.  Clark,  Id.  234  ;  Hall  et  al.  v.  Law,  2  "W. 

6  S.  135;  Finney  v.  Ferguson,  3  Id.  413; 
Chambers  v.  Harger,  18  Penn.  St.  16; 
James  v.  Jarrett,  5  Id.  370 ;  Kirkbride 
et  al.  V.  Durden,  1  Dall.  288  ;  Baker  v. 
Lukens,  35  Penn.  St.  146  ;  Hall  v.  Jones, 
32  111.  38. 

^  By  the  Internal  Revenue  Law.  of  the 
United  States,  a  warrant  of  attorney  ac- 
companying a  bond  or  note  is  exempt 
from  stamp  duty  when  such  bond  or  note 
shall  be  stamped  as  required  by  law.  Act 
of  June  30,  1864,  sec.  160,  2  Brightly's 
Dig.  U.  S.,  p.  343,  sec.  341 ;  and  when  the 
warrant  is  not  so  annexed  it  would,  as  a 
"power  of  attorney,"  require  a  stamp  of 
fifty  cents.     Sea.  l70,.Sahed.  B. 


99  •  OF    CnOSES    IN   ACTION. 

facias,  or  do  any  other  act  for  reviving  the  judgment  or  keeping  the 
same  on  foot,  altliough  no  proceedings  should  have  been  taken  thereupon 
for  the  space  of  one  year.  Without  such  a  provision,  no  execution  could 
be  issued  after  the  expiration  of  a  twelve-month  from  the  date  of  the 
judgment,  without  the  expense  and  trouble  of  a  Avrit  of  scire  facias,  call- 
ino-  on  the  debtor  to  inform  the  court,  or  show  cause,  why  execution 
should  not  be  issued. (</)  But  the  Common  Law  Procedure  Act,  1852, 
now  provides  that  during  the  lives  of  the  parties  to  a  judgment,  or  those 
of  them  during  whose  lives  execution  may  at  present  issue  within  a  year 
and  a  day  without  a  scire  facias,  and  within  six  years  from  the  recovery 
of  the  judgment,  execution  may  *issue  without  a  revival  of  the 
L  -'^^^J  judgment.(r)  A  warrant  of  attorney  is  also  sometimes  given  for 
enterino-  up  judgment  for  a  sum  of  money,  in  order  to  secure  the  regular 
payment  of  an  annuity  ;  in  which  case  the  defeazance  of  course  expresses 
that  no  execution  shall  be  issued  until  default  shall  have  been  made  for 
so  many  days  in  some  payment  of  the  annuity,  but  that,  in  case  of  such 
default,  execution  may  be  issued  from  time  to  time.(s) 

A  warrant  of  attorney  need  not  be  under  seal,(^)  though  it  generally 
is  so.  In  order  to  guard  against  any  imposition  in  procuring  debtors  to 
execute  warrants  of  attorney  or  cognovits  in  ignorance  of  the  effect  of 
such  instrumants,  it  is  provided(M)  that  a  warrant  of  attorney  to  confess 
judgment  in  any  personal  action,  or  cognovit  actionem,  given  by  any  per- 
son, shall  not  be  of  any  force,  unless  there  is  present  some  attorney  of 
one  of  the  superior  courts  on  behalf  of  such  person,  expressly  named  by 
him  and  attending  at  his  request,  to  inform  him  of  the  nature  and  effect 
of  such  warrant  or  cognovit,  before  the  same  is  executed ;  which  attor- 
ney shall  subscribe  his  name  as  a  witness  to  the  due  execution  thereof, 
and  thereby  declare  himself  to  be  attorney  for  the  person  executing  the 
same,  and  state  that  he  subscribes  as  such  attorney.^     And  a  warrant  of 

[q)  Stat.  Westm.  the  second,  13  Edw.  I.  c.  45. 
(r)   Stat.  15  &  16  Vict.  c.  76,  s.  128. 

(«)  See  Cuthbert  v.  Dobbin,  1  C.  B.  278  (E.  C.  L.  R.  vol.  50). 
\t)  Kinnersley  v.  Mussen,  5  Taunt.  264  (E.  C.  L.  R.  vol.  1). 

(m)  Stat.  32  &  33  Vict.  c.  62,  s.  24,  re-enacting  stat.  1  &  2  Vict.  c.  110,  s.  9,  repealed 
by  slat.  32  &  33  Vict.  c.  83. 

1  This  doctrine  has  been  applied  in  the  torney  executed  by  any  person  in  custody 
State  of  New  York,  to  the  execution  of  a  of  any  sheriff  or  other  officer,  for  the  con- 
warrant  of  attorney  by  a  person  in  custody  ;  fession  of  any  judgment,  shall  be  valid  or 
thus  Mason,  J.,  in  Butel  r.  Owens,  2  Sandf.  of  any  force,  unless  there  be  present  some 
S.  C.  655  says  "  It  has  long  been  a  rule  of  attorney  on  behalf  of  such  person  in  cus- 
the  English  courts,  that  no  warrant  of  at-  tody,  to  be  named  by  him,  and  attending 


OF   DEBTS.  100 

attorney  or  cognovit  not  executed  in  manner  aforesaid,  shall  not  be 
rendered  valid  by  proof  that  the  person  executing  the  same  did  in  fact 
understand  the  nature  and  effect  thereof,  or  was  fully  informed  of  the 
same.(a;)  Every  acknowledgment  of  satisfaction  of  a  *judgment  r^c-iA-i-i 
is  also  required  to  be  attested  in  a  similar  manner.(?/)^     Since  -^ 

the  acts  for  registering  writs  of  execution, (^)  warrants  of  attorney  have 
become  much  less  frequent  than  before. 

Not  only  was  there  a  risk  of  debtors  being  imposed  upon,  in  being  pre- 
vailed on  to  execute  warrants  of  attorney,  but  creditors  also  were  for- 
merly liable  to  be  defrauded  by  their  debtors  giving  secret  warrants  of 
attorney,  cognovits,  or  judge's  orders,  to  same  favored  creditors,  to  the 
prejudice  of  the  others.  In  order  to  obviate  this  inconvenience,  provi- 
sion has  been  made  by  modern  acts  of  parliament  for  the  filing,  in  the 
office  of  the  Court  of  Queen's  Bench,  of  all  warrants  of  attorney,  with 
the  defeazances  thereto,  and  of  all  cognovits,  and  of  all  such  judge's 
orders  as  before  mentioned,  or  of  copies  thereof,  within  twenty-one  days 
after  their  execution,  otherwise  the  same  shall  be  deemed  fraudulent  and 
shall  be  void. (a)  And  a  list  of  such  warrants  of  attorney,  cognovits  and 
judge's  orders,(6)  and  also  an  index  containing  the  names,  additions  and 
descriptions  of  the  persons  giving  the  same,(c)  is  directed  to  be  kept  by 

(x)  Stat  32  k  33  Vict.  c.  62,  s.  25,  re-enacting  stat.  1  &  2  Vict.  c.  110,  s.  10,  repealed 
by  Stat.  32  &  33  Vict.  c.  83  :  Potter  v.  Nicholson,  8  M.  &  W.  494  ;  Everard  v.  Popple- 
ton,  5  Q.  B.  181  (E.  C.  L.  R.  vol.  48) ;  Pocock  v.  Pickering,  18  Q.  B.  789  (E.  C.L.  R.  vol.  83). 

(y)  Reg.  Gen.  Hil.  1853,  s.  80. 

(z)  Stats.  23  &  24  Vict.  c.  38,  27  &  28  Vict.  c.  112.  See  Principles  of  the  Law  of 
Real  Property,  p.  79,  6th  ed.,  81,  82,  7th  ed.,  82,  83,  8th  ed. 

(a)  Stats.  3  Geo.  IV.  c.  39,  ss.  1,  3,  32  &  33  Vict.  c.  62,  ss.  26,  27,  28.  The  twenty- 
one  days  are  reckoned  exclusively  of  the  day  of  execution  :  Williams  v.  Burgess,  12 
Ad.  &  E.  635  (E.  0.  L.  R.  vol.  40). 

(b)  Stat.  3  Geo.  IV.  c.  39,  s.  5. 

(c)  Stats.  6  &  7  Vict.  c.  66,  32  &  33  Vict.  c.  62,  s.  28. 

at  his  request,  to  inform  him  of  the  nature  cution  of  all  warrants  of  attorney,  could 

and  effect  of  such  warrant  of  attorney,  be-  be  productive  of  no  injury,  but  would,  on 

fore  the  same  is  executed;  and  the  attorney  the  contrary,  tend  to  prevent  fraud  or  im- 

is  required  to  subscribe  his  name  to  the  due  position. 

execution  thereof.     .     .     .     This  rule  was  'By   a   rule   of  the   Supreme    Court   of 

never  adopted  in  terms  by  the  Supreme  Pennsylvania,   of  the    Court    of  Common 

Court  of  this  State,  but  the  practice  of  the  Pleas,  and   of  the  District  Court   for  the 

court  appears  to  have  always  been  in  ac-  City  and  County  of  Philadelphia,  no  satis- 

cordance  with  it."    It  is  somewhat  singular  faction  of  a  judgment  shall  be  entered  of 

that  this  principle  has  not  with  us,  as  in  record,  unless   attested   by  the  prothono- 

England,  been  extended  to  cases  of  warrants  tary,  or  by  one  of  his  clerks,  with  the  date 

of  attorney  other  than  those   executed  by  of  the  entry, 
prisoners  ;  such  a  rule,  applied  to  the  exe- 


101 


OF    CIIOSES    IN    ACTION. 


the  officer  of  the  Queen's  Bench,  open  to  public  inspection  and  search  on 
payment  of  a  small  fee. 

Every  judgment  debt  carries  interest  at  the  rate  of  41.  per  cent,  per 
anmim  from  the  time  of  entering  up  the  judgment  until  the  same  shall 
be  satisfied,  and  such  interest  may  be  levied  under  a  writ  of  execution 
on  such  *judgment.(<i)'     On  the  death  of  the  debtor,  his  judg- 


[*102] 


ment  debts  must  be  paid  in  full  by  his  executors  or  administra- 

{d)  Stat.  1  k  2  Vict.  c.  110,  s.  17. 


1  Neither  debts  due  by  contract,  or  by 
judgment,  would  bear  interest,  unless  it 
were  so  provided  by  positive  legislation  : 
Hamer  et  al.  v.  Kirkwood  et  al.,  25  Miss. 
95;  Barnes  v.  Crandell,  12  La.  Ann.  112  : 
Thompsons.  Monrow,  2  Cal.  99;  but  it  is 
believed,  that  in  all  of  the  states  except 
North  Carolina,  interest  has  been  made  an 
incident  to  judgments :  The  Common- 
wealth, for  the  use,  &c.,  v.  Vanderslice  et 
al.,  Admrs.,  8  S.  &  R.  452  ;  Ijams  et  al.  v. 
Rice,  use,  &c.,  17  Ala.  404;  Thompson  v. 
Thompson,  5  Ark.  18 ;  Mayor,  &c.,  of 
Macon  v.  The  Trustees  of  the  Bibb  County 
Academy,  7  Geo.  205 ;  Kintner  v.  The 
State,  3  Port.  (Ind.)  92  ;  Chamberlain  v. 
Maitland  &  Co.,  5  B.  Mon.  449 ;  Aubic  v. 
Gill,  7  Rob.  50;  Gwinn  v.  Whitaker,  1 
Har.  &  Johns.  754  ;  Williams,  Admr.,  v. 
The  American  Bank  et  al.,  4  Mete.  317; 
Hodgdon  v.  Hodgdon,  2  N.  H.  169  ;  Mahu- 
rin  V.  Bickford,  6  Id.  568  ;  Sayre  v.  Austin, 
3  "Wend.  496  ;  Graham  v.  Newton,  12  Ohio 
210  ;  Fitzgerald  v.  Caldwell's  Exrs.,  4  Dal. 
251  ;  The  Commonwealth  v.  Miller's 
Admrs.,  8  S.  &  R.  452 ;  Mohn  v.  Heister,  6 
Watts  53  ;  Fishburne,  Exr.  of  Snipes,  v. 
Sanders,  1  Nott  &  McC.  242  ;  Norwood  v. 
Manning,  2  Id.  395  ;  Admr.  of  Pinckney  v. 
Singleton,  2  Hill  S.  C.  343  ;  Gatewood  v. 
Palmer,  10  Humph.  469;  Crabb  v.  The 
Nashville  Bank,  6  Yerg.  332  ;  Grubb  v. 
Brooke,  47  Penn.  St.  485 ;  Townsend  v. 
Smith,  20  Texas  465  ;  Bibend  v.  Liverpool, 
&c.,  Ins.  Co.,  30  Cal.  78.  In  North  Caro- 
lina it  has  been  decided,  that  interest  is 
not  to  be  calculated  upon  a  judgment,  but 
on  the  principal  of  the  debt,  until  the 
time  of  payment:  Satterwhite  v.  Carson, 


3  Ired.  549;  and,  where  judgment  is  en- 
tered for  the  penalty  of  a  bond,  interest 
can  only  be  calculated  upon  the  amount 
found  due  :  Nice  et  al.  v.  Turrentine,  13 
Ired.  212  ;  in  which  last  doctrine,  however, 
North  Carolina  does  not  stand  alone: 
Thomas  v.  Wilson,  3  McCord  166.  See, 
however,  to  the  contrary:  Booth  v.  Able- 
man,  20  Wis.  e02. 

The  rule  that  interest  is  incident  to 
judgments,  applies  even  in  those  cases 
where  judgment  has  been  rendered  for  a 
cause  of  action  which  does  not  bear  in- 
terest, as  for  unliquidated  damages  :  Mar- 
shall V.  Dudley,  4  J.  J.  Marsh.  244 ;  Klock 
V.  Robinson,  22  Wend.  157;  Lord  v.  The 
Mayor,  &c.,  of  New  York,  3  Hill  (N.  Y.) 
427  ;  Harrington  v.  Glenn,  1  Hill  S.  C.  79. 

In  the  case  of  a  revival  of  a  judgment, 
the  original  judgment,  and  the  interest, 
form  a  new  principal,  upon  which  interest 
is  to  be  subsequently  calculated :  Verree 
et  al.  V.  Hughes,  6  Halst.  91  ;  Fries  v.  Wat- 
son, 5  S.  &  R.  220;  Meason's  Estate,  5 
Watts  464;  Wilcher  v.  Hamilton,  15  Geo. 
435  ;  this  doctrine  applies,  also,  to  a  judg- 
ment in  a  scire  facias  against  a  garnishee, 
in  foreign  attachment :  Flanagin  v.  Weth- 
erill,  5  Whart.  280 ;  though  interest  on  a 
debt  due  by  a  garnishee,  is  suspended 
during  the  pendency  of  the  proceedings,  if 
there  be  no  fraud,  collusion,  or  wilful 
delay,  on  the  part  of  the  garnishee  :  Jack- 
son's Exr.  V.  Lloyd,  44  Penn.  St.  82  ;  Rush- 
ton  V  Rowe,  64  Id.  63.  It  has  been  held 
in  Pennsylvania,  that  where  a  judgment  is 
affirmed  by  the  Supreme  Court,  interest  is 
not  to  be  calculated  on  the  aggregate  of 
the  judgment  and  interest  then  due ;  but 


OF    DEBTS. 


102 


tors  out  of  his  personal  estate  before  any  of  his   debts  on   bond  or  by 
simple  contract  ;{e)  ^  but  it  is  now  provided  that,  in  order  to  secure  this 

(c)  Wentworth's  Executors,  265  et  seq.  14th  ed.,  Williams  on  Executors,  pt.  iii.  bk. 
2,  c.  2,  s.  2  ;  Barrington  v.  Evans,  3  You.  &  Col.  384. 


that  the  original  judgment  is  the  sum  on 
which  interest  is  to  be  charged  :  Kelsey  v. 
Murphy,  30  Penn.  St.  340,  doubting  Mc- 
Causland's  Admrs.  v.  Bell,  9  S.  &  R.  388  ; 
and  in  the  same  state,  interest  cannot  be 
included  with  the  principal  of  a  verdict, 
for  the  time  intervening  between  the 
verdict  and  the  judgment:  Irwin  v.  Hazle- 
ton,  37  Penn.  St.  465  ;  and  this  is  also  so  in 
Iowa,  Indiana  and  Louisiana  ;  20  Iowa  21  ; 
BleckenstaflF  v.  Perrin,  27  Ind.  527;  Mun- 
son  V.  Butler,  18  La.  Ann.  296  ;  but  it  is 
otherwise  in  New  Hampshire  :  Johnson  v. 
Atlantic,  &c.,  R.  R.,  43  N.  H.  410;  interest 
as  well  as  principal  can  be  collected  on 
execution:  Ijams  et  al.  v.  Rice,  use,  &c., 
17  Ala.  404;  Berryhill  v.  Wells,  5  Binn. 
56 ;  Admrs.  of  Kirk  v.  The  Exrs  of  Rich- 
bourg,  2  Hill  S.  C.  352  ;  Martin  v.  Kil- 
bourne,  11  Vt.  93;  Taylor  v.  Robinson,  2 
Allen's  (Mass.)  562  ;  but  in  the  state  of 
Tennessee,  in  a  scire  facias  on  a  judgment, 
no  interest  can  be  recovered :  Allen  v. 
Adams  et  al.  v.  15  Humph.  16  ;  Hall  v.  Hall, 
8  Id.  156.  And  so,  also,  in  New  Hamp- 
shire :  Barron  v.  Morrison,  44  N.  H.  226. 

In  some  of  the  states,  it  has  been  made 
lawful,  for  the  parties  to  a  contract,  to 
stipulate  for  a  greater  rate  of  interest  than 
that  fixed  by  statute  ;  yet,  upon  the  judg- 
ment, only  the  statutory  rate  of  interest 
shall  be  allowed :  Borry  v.  Makepeace,  3 
Port.  (Ind.)  154;  Burkhart  v.  Sappington, 
1  Iowa  66 ;  Hawkins  et  al.  v.  Ridenhour, 
13  Mo.  125  ;  Guernsey  Bk.  v.  Kelley,  14 
Ohio  367 ;  White  v.  Haffaker,  27  111.  349  ; 
but  see  to  the  contrary :  Hamer  et  al.  v. 
Kirkwood  et  al.,  29  Miss.  95  ;  Byrd  v.  Gas- 
quet,  1  Hemp.  261 ;  in  other  states,  where 
the  parties  have  contracted  for  a  rate  of 
interest,  that  rate  of  interest  shall  be  con- 
tinued after  judgment,  not  upon  the  judg- 
ment, but  upon  the  principal  of  the  debt 
or  claim:  Tindale  v.  Meeker,  1  Scam.  137  ; 
Aubic  V.  Gill,  7  Rob.  50. 


In  Alabama,  in  an  action  of  debt  upon 
a  judgment  obtained  in  a  sister  state,  and 
judgment  had  by  nildicit,  &c.,  interest  can- 
not be  calculated  upon  the  original  judg- 
ment, at  the  rate  allowed  by  law  in  the 
state  where  it  was  obtained,  unless  a  jury 
shall  first  find  what  that  rate  of  interest 
is  :  Clarke  v.  Pratt,  20  Ala.  470  ;  Mobile  & 
Cedar  Point  R.  R.  Co.  v.  Talman  et  al.,  15 
Id.  472  ;  Harrison  et  al.  v.  Harrison,  20  Id. 
629  ;  and  in  Massachusetts,  interest  will  be 
allowed  only  on  the  rate  of  interest  of  that 
state:  Barringer  v.  King,  5  Gray  9.  See, 
also,  for  the  same  principle  :  Cavender  v. 
Guild,  4  Cal.  250;  Ingram  v.  Drinkard,  14 
Texas  351 ;  Nelson  v.  Felder,  7  Rich.  Eq. 
395;  Deem  v.  Crume,  46  111.  69. 

By  No.  23  of  the  Revised  Rules  of  the 
Supreme  Court  of  the  United  States  (21 
How.),  it  is  provided,  that  "In  cases 
where  a  writ  of  error  is  prosecuted  to  the 
Supreme  Court,  and  the  judgment  of  the 
inferior  court  is  affirmed,  the  interest  shall 
be  calculated  and  levied  from  the  date  of 
the  judgment  below,  until  the  same  is 
paid,  at  the  same  rate  that  similar  judg- 
ments bear  interest,  in  the  courts  of  the 
state  where  such  judgment  is  rendered," 
&c.  See  Perkins  v.  Fourniquet  et  al.,  14 
How.  (U.  S.)  328;  but  where  a  judgment 
of  the  Circuit  Court  in  an  admiralty  case, 
was  affirmed,  by  operation  of  law,  in  the 
Supreme  Court,  the  court  being  equally 
divided,  interest  was  not- allowed  on  the 
judgment:  Hemmenway  v.  Fisher,  20  How. 
255. 

1  The  order  in  which  the  debts  of  a 
decedent  are  to  be  paid,  is  regulated  by 
the  statute  law  of  the  several  states,  and 
in  many  of  them,  judgments  have  no  pre- 
cedence over  debts  due  by  specialty,  or 
simple  contract ;  but  in  the  absence  of  any 
enactment  on  the  subject,  judgments  have 
a  legal  priority,  according  to  the  rules  of 
the    common    law  :   Nimmo's   Exr.  v.  The 


102 


OF    CHOSES    IN    ACTION. 


preference,  the  judgment  must  be  registered  or  re-registered  within  five 
years  before  the  death  of  the  testator  or  intestate,  in  the  same  manner 


Commonwealth,  4  Hen.  k  Munf.  .57  ;  and 
the  decree  of  a  court  of  equity  is  equiva- 
lent to  the  judgment  of  a  court  of  law  : 
In  the  matter  of  the  estate  of  John  Sperry, 
dec'd,  1  Ash.  347  ;  Thompson  v.  Brown,  4 
Jolins.  Ch.  619  ;  and,  if  there  be  not  assets 
sufficient  to  pay  all  the  debts  of  the  de- 
ceased, it  is  the  dut}'  of  the  executor  or 
administrator  to  apply  them  rateably  to 
the  payment  of  all  the  debts,  except  such  as 
operate  as  liens,  and  are  entitled  to  a  pre- 
ference :  Gay  v.  Lemele,  32  Miss.  309 ; 
Bennett  v.  Ives,  30  Conn. "329.  On  the 
subject  of  the  payment  of  the  debts  of  a 
decedent,  see  Robertson  v.  Demoss,  Admx., 

23  Miss.  300;  Bason,  Admx.,  v.  Hughart,  2 
Texas  47G  ;  Place,  &c.,  v.  Oldham's  Admr., 
10  B.  Mon.  400 ;  Smith  et  al.  v.  The  State 
of  Maryland,  5  Gill  45  ;  The  State  of  Mary- 
laud  V.  The  Bank  of  Maryland,  6  Gill  & 
Johns.  207  ;  Thomas  v.  McElwee,  3  Strobh. 
131  ;  Williams,  Admr.,  v.  John  W.  &  Wm. 
Benedict,  trading,  &c.,  8  How.  (U.  S.)  107  ; 
Greenough's  Ap.,  9  Penn.  St.  18  ;  The 
State  on  the  relation,  &c.,  v.  Jolinson  etal. 
7  Ired.  231  ;  Malis  &  Co.  v.  Admrs.  of 
Jones,  2  Richard  393  ;  Deichman's  Ap.,  2 
Whart.  395;  United  states  v.  Duncan,  4 
McLean  607  ;  The  Commonwealth,  for  the 
use,  &c.,  V.  Lewis,  6  Binn.  266  ;  Martin's 
Ap.,  33  Penn.  St.  395  ;  Smith  v.  Mallory, 

24  Ala.  628;  Kittera's  Est.,  17  Penn.  St. 
416;  Mahone  v.  Central  Bk.,  17  Geo. 
111. 

The  position,  that  the  personalty  of  a 
decedent,  is  to  be  first  applied  to  the  pay- 
ment of  his  debts,  is  well  established. 
In  Pennsylvania,  it  has  been  decided  by 
the  case  of  Hoover  v.  Hoover,  5  Penn.  St. 
351,  that  the  assets  shall  be  applied  in  the 
following  order,  to  the  payment  of  the 
debts  :  1.  The  general  personal  estate  not 
expressly,    or  by  implication,   exempted  ; 

2.  Lands  expressly  devised   to  pay  debts ; 

3.  Estates  descended  to  the  heir  ;  4.  De- 
vised lands,  charged  with  the  payment  of 
debts  generally,  whether  devised  in  terms 
general  or  specific  (every  devise  of  land 
being  in   its  nature  specific)  ;    5.  General 


pecuniary  legacies,  pro  rata;  6.  Specific 
legacies,  pro  rata;  7.  Real  estate  devised; 
whether  in  terms  general  or  specific.  But 
see  Hallowell's  Est.,  23  Penn.  St.  229  ; 
and  Loomis's  Ap.,  10  Id.  387.  In  New  York, 
by  Livingston  v.  Newkirk,  3  Johns.  Ch. 
312,  the  order  of  application  was  estab- 
lished, as,  1.  The  general  personal  estate  ; 

2.  Estates  devised  expressly  for  the  pay- 
ment of  debts,  and  for  that  purpose   only  ; 

3.  Estates  descended.  4.  Estates  specifi- 
cally devised,  though  charged  generally 
with  the  payment  of  debts.  Which  last 
has  also  been  decided  to  be  the  order  of 
application  in  Kentucky,  by  McCampbell 
V.  McCampbell,  5  Litt.  95,  viz.:  1.  The 
general  personal  estate  ;  2.  The  estate  es- 
pecially and  expressly  devised  to  be  sold  ;  3. 
The  estate  descended  ;  4.  The  estate  speci- 
fically devised,  though  charged  generally 
with  the  payment  of  debts.  In  Massa- 
chusetts, by  the  case  of  Hayes  r.  Jackson, 
C  Mass.  149,  the  order  was  settled,  as 
follows  ;  1.  The  personal  estate  excepting 
specific  bequests,  or  such  of  it  as  is  ex- 
empted from  the  payment  of  debts  ;  2. 
The  real  estate,  appropriated  in  the  will 
as  a  fund  for  the  payment  of  debts  ;  3. 
The  descended  estate,  whether  the  testator 
was  seized  of  it  when  the  will  was  made, 
or  it  was  afterwards  acquired  ;  4.  The  rents 
and  profits  of  it,  received  by  the  heir  after 
the  testator's  death  ;  5.  The  lands  specifi- 
cally devised,  although  generally  charged 
with  debts,  yet  not  specially  appropriated 
for  that  purpose.  And  see  Stuart  v.  Exr. 
of  Carson,  1  Desaus.  500;  Hall  et  ux. 
V.  Sayre,  10  B.  Mon.  46  ;  Williams  v.  Price, 
21  Geo.  507  ;  Brant's  Will.,  40  Mo.  266. 

As  to  the  judgments  of  foreign  states, 
and  that  they  are  not  entitled  to  the  pri- 
ority due  judgments  obtained  against  the 
decedent,  in  the  state  where  he  resided, 
but  on  the  contrary,  rank  with  simple  con- 
tract debts,  see,  Brengle  v.  McClellan,  7 
Gill  &  Johns.  434  ;  Hubbell  v.  Coudry,  5 
Johns.  132  ;  Cameron  v.  Wurtz,  4  McC.  278  ; 
Gainey  v.  Sexton,  29  Mo.  449;  Brown  v. 
Public  Admr.,  2  Bradf.  103. 


OF   DEBTS.  102 

as  is  required  in  order  to  affect  lands  in  the  hands  of  purchasers  or 
mortgagees.(f)^  The  decree  of  a  court  of  equity  is  equivalent  to  the 
judgment  of  a  court  of  law.(^)  And  the  privilege  of  priority  of  pay- 
ment extends  to  the  judgments  of  every  court  of  record,  whether 
superior  or  inferior  ;  but  the  judgment  of  a  foreign  court  is  entitled  to 
no  precedence  over  a  simple  contract  debt.(7i)  The  remedies  of  the 
creditor  by  judgment  of  any  of  the  superior  courts,  against  the  real 
estate  of  his  debtor,  are  mentioned  in  the  author's  treatise  on  the 
Principles  of  the  Law  of  Real  Property. (e)  The  remedies  against 
the  choses  in  possession  of  the  debtor  have  been  referred  to  in  a 
previous  part  of  the  present  work.(^)  The  remedies  in  respect  of 
the  choses  in  action  of  the  debtor  will  be  hereafter  mentioned.  In 
addition  to  these  remedies,  such  judgment  creditor  might  formerly 
have  imprisoned  the  person  of  his  debtor  by  means  of  the  writ  of 
capias  ad  satisfacieyidum  ;{l)  but  should  he  have  done  so,  he  would 
*have  relinquished  all  right  and  title  to  the  benefit  of  any  charge  r-.,,-,  ^q-. 
or  security  which  he  might  have  obtained  by  virtue  of  his  judg- 
ment.(m)  If,  however,  the  debt  should  not  have  exceeded  20/.,  the 
debtor  could  not  have  been  imprisoned(/i)  without  a  previous  summons 
and  examination  before  a  commissioner  of  bankrupt  or  a  judge  of  a 
county  court,  who  would  have  ordered  the  commitment  of  the  debtor 
only  in  a  case  of  fraud  or  other  ill  behavior  ;(o)  and  the  imprisonment 

(/)  Stat.  23  &  24  Vict.  c.  38,  ss.  3,  4,  not  retrospective  :  Evans  v.  Williams,  2  Drew. 
&  Smale  324.  See  Re  Rigby,  M.  R.,  12  W.  32  ;  Jennings  v.  Rigby,  33  Beav.  198  ;  Prin- 
ciples of  the  Law  of  Real  Property,  p.  75  et  seq.  6th  ed.,  80  et  seq.  Tth  ed.,  81  et  seq. 
8th  ed. 

(^r)  Shafto  V.  Powe,  3  Lev.  355. 

(h)  Duplex  V.  De  Proven,  2  Vern.  540.  See  also  Smith  v.  Nicoll3,  5  Bing.  N.  C.  208 
(E.  C.  L.  R.  vol.  35). 

(i)  P.  63  et  seq.  2d  ed.,  66  3d  &  4th  ed.,  71  5th  ed.,  75  6th  ed.,  78  7th  &  8th  ed. 

(k)  Ante,  p.  51.  (I)  Bac.  Abr.  tit.  Execution  (C)  3. 

(m)  Bac.  Abr.  tit.  Execution  (D) ;  stat.  1  &  2  Vict.  c.  110,  s.  16. 

(n)  Stat.  7  &  8  Vict.  c.  96,  s.  57. 

(o)  Stat.  8  &  9  Vict.  c.  127;  9  &  10  Vict.  c.  95,  s.  99. 

1  The  lien  docket  is  not  the  record  of  quent  incumbrancer  which  shall  be  actual : 
judgments,  but  the  essential  index  of  Smith's  Ap.,  47  Penn.  St.  140  ;  otherwise, 
them;  it  does  not  make  a  judgment,  but  it  will  not  be  effectual  as  a  judgment,  as 
refers  to  one  supposed  to  be  already  made  :  against  subsequent  lien  creditors,  whose 
Ferguson  t).  Staver,  40  Penn.  St.  216  ;  but  liens  are  regularly  docketed;  Snyder 
the  law  requires  judgments  to  be  properly  County  Ap.,  3  Grant's  Cas.  40 ;  but  a  sub- 
docketed  and  indexed,  or  in  default  of  sequent  incumbrancer  is  not  bound  to 
this,  which  amounts  onlj'  to  constructive  verify  the  judgment  index  by  the  record  : 
notice,  to  bring  home  notice   to  a  subse-  Coyne  v.  Southern,  61  Penn.  St.  455. 


103  OF    CIIOSES    IN    ACTION. 

would  not  then  have  operated  as  any  satisfaction  of  the  debt.(|?)  But 
an  act  has  now  been  passed  for  the  abolition  of  imprisonment  for  debt 
and  for  the  punishment  at  the  same  time  of  fraudulent  debtors. (r^)^  This 
act  is  styled  "  The  Debtors  Act,  1869,"  and  the  1st  of  January,  1870,  is 
the  date  of  its  commencement.  It  provides  that,  with  the  exceptions 
after  mentioned,  no  person  shall,  after  the  commencement  of  the  act,  be 
arrested  or  imprisoned  for  making  default  in  payment  of  a  sum  of  money. 
The  exceptions  are : — (1.)  Default  in  payment  of  a  penalty,  or  sum  in 
the  nature  of  a  penalty,  other  than  a  penalty  in  respect  of  any  contract. 
(2.)  Default  in  payment  of  any  sum  recoverable  summarily  before  a  jus- 
tice or  justices  of  the  peace.  (3.)  Default  by  a  trustee  or  person  acting 
in  a  fiduciary  capacity  and  ordered  by  a  court  of  equity  to  pay  any  sum 
in  his  possession  or  under  his  control.  (4.)  Default  by  an  attorney  or 
solicitor  in  payment  of  costs  when  ordered  to  pay  costs  for  misconduct  as 
such,  or  in  payment  of  a  sum  of  money  when  ordered  to  pay  the  same 
in  his  character  of  an  officer  of  the  court  making  the  order.  (5.)  Default 
in  payment  for  the  benefit  of  creditors  of  any  portion  of  a  salary  or  other 
r*1041  ^^^*^™^  ^"  respect  of  the  payment  of  *which  any  court  having 
jurisdiction  in  bankruptcy  is  authorized  to  make  an  order. 
(6.)  Default  in  payment  of  sums  in  respect  of  the  payment  of  which 
orders  are  in  that  act  authorized  to  be  made.  But  no  person  is  to  be 
imprisoned  in  any  case  excepted  from  the  operation  of  that  section  for  a 
longer  period  than  one  year.(r)  Power  is  also  reserved  for  any  court  to 
commit  to  prison  for  a  term  not  exceeding  six  weeks,  or  until  payment 
of  the  sum  due,  any  person  who  makes  default  in  payment  of  any  debt, 
or  instalment  of  any  debt,  due  from  him  in  pursuance  of  any  order  or 
judgment  of  that  or  any  other  competent  court ;  but  this  power  is  guarded 
by  many  provisions  which  it  is  not  here  necessary  to  recite. (s)  Arrest 
on  mesne  process  is  also  allowed  under  certain  circumstances,  if  the 
debtor  is  about  to  quit  England.(<)  Provision  is  also  made  for  the  pun- 
ishment of  fraudulent  debtors  by  imprisonment  for  any  time  not  exceed- 
ing two  years  with  or  without  hard  labor. (m)  An  act  has  recently  been 
passed  for  rendering  judgments  obtained  in  the  Superior  Courts  in  Eng- 

(p)  Stat.  8  &  9  Vict.  c.  127,  s.  3 ;  9  &  10  Vict.  c.  95,  s.  103. 

(q)  Stat.  32  &  33  Vict.  c.  62.  (r)   Stat.  32  &  33  Vict.  c.  62,  s.  4. 

(a)  Sect.  5.  (t)  Sect.  6.  (u)  Sect.  11  et  seq. 

^  In  many  of  the   States   of  the   Union,  tions  for  trespass  or  torts  ;  and  arrest  is 

imprisonment  for  debt  has  been  abolished  usually    permitted    where    the    debt    has 

by  acts  of  legislation.    Suits  for  fines  and  been    fraudulently    contracted,   or    -where 

penalties  are  excepted  from  the  effect  of  the   debtors   fraudulently  conceal   or  dis- 

these  statutes,  nor  do  they  embrace  ac-  pose  of  their  effects. 


OF   DEBTS.  104 

land,  Scotland  and  Ireland  effectual  in  any  other  part  of  the  United 
Kingdom,  (v) 

Judgments  of  the  inferior  courts  may  be  removed  into  the  superior 
courts  by  order  of  any  judge  of  the  latter  courts ;  and  immediately  on 
such  removal  the  judgment  has  the  same  force,  charge  and  effect  as  a 
judgment  of  the  superior  court  ;^  but  it  cannot  affect  any  lands,  tene- 
ments or  hereditaments,  as  to  purchasers,  mortgagees  or  creditors,  unless 
registered  in  the  same  manner  as  judgments  of  the  superior  courts. (w) 
A  registry  is  now  *provided  for  judgments  in  the  county  courts  r^tc-inc-i 
for  the  sum  of  101.  and  upwards. (x) 

In  addition  to  judgment  debts,  the  other  debts  of  record  are  recog- 
nisances when  duly  enrolled, (?/)  and  statutes  merchant,  statutes  staple 
and  recognisances  in  the  nature  of  statutes  staple.  The  three  last  are 
now  quite  obsolete.  A  recognisance  is  an  obligation  entered  into,  before 
some  court  of  record  or  magistrate  duly  authorized,  with  condition  to  do 
some  particular  act,  as  to  appear  at  the  assizes,  to  keep  the  peace,  or  to 
pay  a  debt.(2)  It  is  payable  out  of  the  personal  estate  of  the  debtor,  in 
the  event  of  his  decease,  next  after  judgment  debts. (a)^ 

[v)  Stat.  31  &  32  Vict   c.  54. 

(w)  Stat.  1  &  2  Vict.  c.  110,  s.  22  ;  18  &  19  Vict.  c.  15,  s.  7.  See  Principles  of  the 
Law  of  Real  Property  74,  5th  ed. ;   78,  6th  ed. ;  80,  7th  ed. ;  81,  8th  ed. 

(z)  Stat.  15  &  16  Vict.  c.  54,  s.  18.  (y)  Glynn  v.  Thorpe,  1  B.  &  Aid.  153. 

(z)  2  Bla.  Com.  341. 

(a)  Williams  on  Executors,  pt.  iii.  bk.  2,  s.  2. 

^  See  Dickinson  v.  Smith,  25  Barb.  102  ;  of  payment  out  of  the  proceeds  of  the  sale, 

Hitchcock  V.   Long,   2   W.  &  S.   170.     In  over    either    "physic,    funeral    expenses, 

Pennsylvania,    although    judgments    ob-  servants'   wages,"  &c. :    In   the  matter  of 

tained  before  a  justice  of  the  peace,  when  the   Estate   of   Wm.   Patterson,    dec'd,    1 

filed    in    the    Common    Pleas,    or    made  Ash.  336. 

known   to   the    administrators,   must    be  ^  In  New  Jersey  and  Tennessee,  a  recog- 

paid  pro  rata  with  judgments  in  a  court  nisance  creates  a  lien  on  the  lands  of  the 

of  record :    Scott,   Admr.,   v.   Ramsay,    1  recognisor,  from  the  time  of  its  acknow- 

Binn.    221;    yet,   where   a  judgment  was  ledgment :    State  v.  Stout,  6    Halst.  362; 

obtained    before   a  justice    of   the    peace  State  v.  Winn,  3   Sneed   393 ;    but,  gene- 

against  the  defendant,  and,  after  his  death,  rally,  a  recognisance  does  not  operate  as 

a  transcript  of  the  judgment  was  filed  in  a  lien   on   the   lands  of  the    recognisors, 

the  office  of  the  Prothonotary  of  the  Court  until  judgment  on  the  recognisance  :  State 

of  Common   Pleas,  and  subsequently  the  v.  Morgan,  2  Bailey  601  ;  Dewit  v.  Osborn, 

real  estate  of  the  defendant  was  sold  by  5  Harring.  480;  People  v.  Lott,  21  Barb, 

his  administrators,  under  an  order  of  the  130;     Gilmer    v.    Blackwell,    Dudley    6; 

Orphans'  Court,  the  Court  held  that  the  Pinckard   v.   The   People,    1    Scam.    187; 

judgment  was  not  a  lien  on  the  lands  of  Graham  v.  State,  7  Blackf.  313;  Allen  v. 

the  intestate,  and  that  it  had  no  priority  Reesor,  16  S.  &  R.  II. 


105  OF    CnOSES    IN    ACTION. 

Next  in  importance  to  debts  of  record  were  formerly  specialty  debts, 
or  debts  secured  by  special  contract  contained  in  a  deed.[h)  These  were 
of  two  kinds,  debts  by  specialty  in  wliicli  the  heirs  of  the  debtors  were 
bound,  and  debts  by  specialty  in  which  the  heirs  were  not  bound.  On 
the  decease  of  the  debtor,  both  these  classes  of  specialty  debts  stood  on 
a  level  so  far  as  regarded  their  payment  out  of  the  personal  estate  of 
the  debtor.  They  ranked  next  after  debts  of  record,  and  took  pre- 
cedence of  all  debts  by  simple  contract,(6')  with  the  exception  of  money 
owing  for  arrears  of  rent,  to  which  the  feudal  principles  of  our  law  have 
given  an  importance  equal  to  that  of  debts  secured  by  deed.(c?)  Debts 
by  specialty  in  whicli  the  heirs  were  bound  had,  however,  a  precedence 
over  those  in  which  the  heirs  were  not  bound,  in  case  the  real  estate 
ri^i-inn-^  of  the  debtor  *should  have  been  resorted  to  on  his  decease  ;(e) 
unless  he  should  have  charged  his  real  estate  by  his  will  with 
the  payment  of  his  debts,  in  which  case  all  the  creditors  of  every  kind 
would  have  been  paid  out  of  the  produce  of  such  real  estates,  without  any 
preference. (/)  An  act,  however,  has  recently  passed  to  abolish  the  dis- 
tinction as  to  priority  of  payment  which  formerly  existed  between  the 
specialty  and  simple  contract  debts  of  deceased  persons. (^)  This  act 
provides  that  in  the  administration  of  the  estate  of  every  person  who 
shall  die  on  or  after  the  1st  of  January,  1870,  no  debt  or  liability  of  such 
person  shall  be  entitled  to  any  priority  or  preference  by  reason  merely 
that  the  same  is  secured  by  or  arises  under  a  bond,  deed  or  other  instru- 
ment under  seal,  or  is  otherwise  made  or  constituted  a  specialty  debt ; 
but  all  the  creditors  of  such  person,  as  well  specialty  as  simple  contract, 
shall  be  treated  as  standing  in  equal  degree,  and  be  paid  accordingly  out 
of  the  assets  of  such  deceased  person,  whether  such  assets  are  legal  or 
equitable,  any  statute  or  other  law  to  the  contrary  notwithstanding ; 
provided  that  the  act  shall  not  prejudice  or  affect  any  lien,  charge  or 
other  security  which  any  creditor  may  hold  or  be  entitled  to  for  the  pay- 
ment of  his  debt. 

For  the  sake  of  the  advantage  of  priority  which  might  have  been  gained 
on  the  decease  of  the  debtor,  his   heirs  were  usually  bound  in  every 

{b)  2  Bla.  Com.  465.     See  ante,  p.  72. 

(c)  Pinchon's  Case,  9  Rep.  88  b. 

{d)  Wcntworth's  Executors,  284,  14th  ed. ;  Claugh  v.  French,  2  Coll.  277. 

(c)  See  Principles  of  the  Law  of  Real  Property  60,  2d  ed.;  63,  3d  &  4th  cds. ;  68, 
5th  ed.;  72,  6th  ed. ;   77,  7th  ed. ;   78,  8th  ed.;  Richardson  v.  Jenkins,  1  Drew.  477,  483. 

(/)  2  Jarm.  Wills,  523,  2d  ed. ;  584,  3d  ed. 

{g)  Stat.  32  &  33  Vic.  c.  46.  The  public  are  indebted  for  this  important  act  to  Mr. 
J.  Hinde  Palmer,  Q.  C. 


OF   DEBTS.  106 

specialty  debt.  The  deed  creating  the  debt  was  either  a  deed  of  covenant 
or  a  bond.  A  covenant  ran  thus  :  "  And  the  said  {debtor)  doth  hereby 
for  himself,  his  heirs,  executors  *and  administrators,  covenant  rxc-jny-i 
with  the  said  (creditor),  his  executors  and  administrators,"  to 
pay,  &c.  A  bond  was  in  the  following  form  :  "  Know  all  men  by  these 
presents,  that  I  (debtor),  of  {such  a  place),  am  held  and  firmly  bound  to 
{creditor),  of  {such  a  'place),  in  the  penal  sum  of  lOOOZ.  of  lawful  money 
of  Great  Britain,  to  be  paid  to  the  said  {creditor),  or  to  his  certain 
attorney,  executors,  administrators  or  assigns,  for  Avhich  payment  to  be 
well  and  truly  made  I  bind  myself,  my  heirs,  executors  and  adminis- 
trators, and  every  of  them,  firmly  by  these  presents.  Sealed  with  my 
seal.  Dated  this  1st  day  of  January,  1848."  In  both  of  the  above 
cases  it  will  be  observed  that  the  executors  and  administrators  were 
bound  as  well  as  the  heirs.  This,  however,  was  not  absolutely  necessary, 
and  the  covenant  or  bond  would  have  been  equally  effectual  if  the  heirs 
only  had  been  named  in  it.(//) 

A  bond  in  the  form  above  mentioned,  without  any  addition  to  it,  was 
called  a  single  bond.  Bonds,  however,  had  usually  a  condition  annexed 
to  ,them,  that,  on  the  person  bound  (called  the  obligor)  doing  some 
specified  act  (as  paying  money  when  the  bond  was  to  secure  the  payment 
of  money),  the  bond  should  be  void.  The  condition  of  an  ordinary 
money-bond  was  as  follows  :  "  The  condition  of  the  above-written  bond 
or  obligation  is  such,  that  if  the  above-bounden  (debtor),  his  heirs,  exe- 
cutors, or  administrators,  should  pay  unto  the  said  {creditor),  his  executors, 
administrators  or  assigns,  the  full  sum  of  500?.  {usually  half  the  amount 
named  in  the  penalti/)  of  lawful  money  of  Great  Britain,  with  interest  for 

the  same  after  the  rate  of  51.  per  cent,  per  annum,  upon  the day 

of now  next  ensuing,  without  any  deduction  or  abatement  whatso- 
ever, then  the  above-written  bond  or  obligation  shall  be  void,  otherwise 
the  *same  shall  remain  in  full  force."  Bonds  with  conditions  of  r^-jno-i 
this  kind  were  long  in  use.  In  former  times,  when  the  condition 
was  forfeited,  the  whole  penalty  was  recoverable. (2)  Equity  subse- 
quently interfered,  and  prevented  the  creditor  from  enforcing  more  than 
the  amount  of  the  damage  which  he  had  actually  sustained.  The  courts 
of  law  at  length  began  to  follow  the  example  of  the  courts  of  equity ; 
and  according  to  a  course  of  proceeding,  of  which  there  are  many  exam- 
ples in  the  history  of  our  law,  the  legislature  more  tardily  adopted  the 
rules  Avhich  had  already  been  acted  on  in  the  courts ;  and  by  a  statute 

(h)  Co.  Litt.  209  a  ;  Barber  v.  Fox,  2  Wms.  Saund.  136. 
((■)  Litt.  s.  340. 


108  OF   CnOSES    IN    ACTION. 

of  the  reign  of  Queen  Anne  it  was  provided,  that,  in  case  of  a  bond  with 
a  condition  to  be  void  upon  payment  of  a  lesser  sum,  at  a  day  or  place  cer- 
tain, the  payment  of  the  lesser  sum  with  interest  and  costs  should  be  taken 
in  full  satisfaction  of  the  bond,  though  such  payment  were  not  strictly  in 
accordance  with  the  condition. (y)  But  if  the  arrears  of  interest  should 
have  accumulated  to  such  an  amount  as,  together  with  the  principal,  to  ex- 
ceed the  penalty  of  the  bond,  the  creditor  could  claim  no  more  than  the  pen- 
alty either  at  law(/c)  or  in  equity.(/)  If,  however,  there  were  special  circum- 
stances in  the  creditor's  favor,  as  if  he  had  a  mortgage  also  for  the  principal 
and  interest,(w2)  or  if  the  debtor  had  been  delaying  him  by  vexatious  pro- 
ceedings,(w)  equity  would  then  have  aided  him  to  the  full  extent  of  his 
)demand.(o) 

r*lflQ1        *Bonds  were  frequently  given,  not  only  for  securing  the  pay- 
ment of  money  on  a  given  day,  but  also  with  conditions  to  be 

(y)  Stat.  4  &  5  Anne,  c.  16,  ss.  12,  13.  See  3  Burr.  1373  ;  2  Bla.  Com.  341  ;  Smith  v. 
Bond,  10  Bing.  125  (E.  C.  L.  R.  vol.  25) ;  s.  c.  3  M.  &  Sc.  528  ;  James  v.  Thomas,  5  B. 
&  Ad.  40  (E.  C.  L.  R.  vol.  27). 

(k)  Wild  V.  Clarkson,  6  Term  Rep.  303. 

(l)  Clarke  v.  Seton,  6  Ves.  411  ;  Hughes  v.  Wynne,  1  Myl.  &  K.  20. 
(m)  Clarke  v.  Lord  Abingdon,  17  Ves.  106. 
(n)  Grant  v.  Grant,  3  Sim.  430. 

(o)  6  Ves.  416.  By  the  Stamp  Act,  13  &  14  Vict.  c.  97,  bonds  and  covenants  for  the 
payment  of  any  definite  and  certain  sum  of  money  are,  with  some  exceptions,  charged 
with  an  ad  valorem  duty  of  one-eighth  per  cent,  or  half-a-crown  per  hundred  pounds  on 
the  money  secured,  according  to  the  following  table  contained  in  the  act : — 

s.     d. 

Not  exceeding  £50 13 

Exceeding  £50  and  not  exceeding  £100 2     6 

"  100  "  150 3     9 

"  150  "  200 5     0 

"  200  "  250 6     3 

"  250  »  300 7     6 

And  where  the  same  shall  exceed  £300, 
then  for  every  £100,  and  also  for  any 

fractional  part  of  £100 2     6 

By  Stat.  30  &  31  Vict.  c.  90,  s.  23,  tranfers  of  bonds  are  generally  subject  to  an 
ad  valorem  duty  of  sixpence  for  every  £100  and  any  fractional  part  of  £100.i 

1  By  the  "  Internal  Revenue  Law,"  being  dollars,  or  fractional  part  thereof.  The 
the  Act  of  Congress  of  June  30,  1864,  it  is  stamp  duty  for  official  bonds  is  one  dollar  ; 
provided,  that  the  stamp  duty  on  any  per-  and  all  other  description  of  bonds,  except 
sonal  bond,  given  as  security  for  the  pay-  such  as  are  required  in  legal  proceed- 
ment  of  any  definite  or  certain  sum  of  ings,  or  used  in  connection  with  mortgage 
money  not  exceeding  one  thousand  dollars,  deeds  and  not  otherwise  charged,  twenty- 
shall  be  fifty  cents,  and  fifty  cents  for  five  cents  :  Sec.  170  Sched.  B.,  tit.  "Bond," 
every   additional   sum    of    one   thousand  2  Brightly  U.  S.  Dig.,  p.  378,  s.  362. 


OF    DEBTS.  109 

void  on  the  performance  of  many  other  acts  agreed  to  he  done,  or  on 
the  payment  of  money  hy  instalments.  In  such  cases  the  law  formerly 
was,  that  on  the  breach  of  any  part  of  the  condition,  the  whole  penalty 
became  due ;  and  judgment  and  execution  might  be  had  thereon,  subject 
only  to  the  control  of  a  court  of  equity  on  application  to  it  for  relief. 
But  subsequently  in  such  cases  the  obligee  (or  person  to  whom  the  bond 
is  made)  was  required  in  bringing  his  action  to  state  or  assign  the  breaches 
which  had  been  made  by  the  obligor  ;(jo)  and  although  judgment  was 
still  recovered  for  the  whole  penalty,  execution  of  such  judgment  was 
allowed  to  issue  only  for  the  damages  in  respect  of  the  breaches  actually 
committed  ;  and  the  judgment  remained  as  a  further  security  for  the 
damages  to  be  sustained  by  any  future  breach. (^)^  But  now,  since  bonds 
and  covenants  have  been  deprived  of  all  priority  in  administration,  they 
will  gradually  become  obsolete. 

*The  last  and  most  numerous,  though  least  important,  class  r^-i-in-i 
of  debts  in  the  eye  of  the  law  are  debts  by  simple  contract,  which 
are  all  debts  not  secured  by  the  evidence  of  a  court  of  record,  or  by  deed 
or  specialty.  On  the  decease  of  the  debtor,  these  debts  were  formerly 
payable  out  of  his  personal  estate,  by  his  executor  or  administrator,  sub- 
sequently to  all  debts  of  record  or  by  specialty,  except  voluntary  bonds, 
which  were  payable  after  all  simple  contract  debts,  but  before  any  of  the 
legacies. (r)^  But  now,  as  we  have  seen,  all  simple  contract  debts  will  be 
payable  pari  passu  with  debts  secured  by  specialty.  Voluntary  bonds  and 
covenants  under  seal  will  still  be  probably  continued  in  use,  inasmuch  as 

[p)  See  the  judgment  of  Parke,  B.,  in  Grey  v.  Friar,  15  Q.  B.  891,  910  (E.  C.  L.  R.  vol. 
69)  ;  Wheelhouse  v.  Ladbrooke,  3  H.  &  N.  291. 

{q)  Stat.  8  &  9  Will.  III.  c.  11,  s.  8  ;  Hardy  v.  Bern,  5  Term  Rep.  G36  ;  Willoughby  v. 
Swinton,  6  East  550;  1  Wms.  Saund.  57,  n.  (1)  ;  Hurst  v.  Jennings,  5  B.  &  C.  650 
(E.  C.  L.  R.  vol.  11)  ;  s.  c.  8  D.  &  R.  424. 

{r)  Lomas  v.  Wright,  2  Myl.  &  K.  769;  Watson  v.  Parker,  6-Beav.  283. 

1  There  is  a  difference  as  to  the  remedy  suing:    McMicken   v.    Commonwealth,   58 

on  the  sheriff's  bond,  or  recognisance,  in  Id.  213. 

Pennsylvania,  which   are  distinct  securi-  ^  A  voluntary  bond,  in  law  as  well  as  at 

ties  :    Commonwealth   v.  Montgomery,  33  equity,  is  good  between  the  parties,  but  in 

Penn.    St.    519;    in    the    former    case    the  the    course  of  administration,  it  must  be 

judgment  is  for  the  penalty  of  the  bond,  in  postponed  to  any  just   debts,  though   due 

favor  of  the  Commonwealth,  and  in  favor  by  simple  contract:  Stephens  v.  Harris  et 

of  the  individual  party  for  his  damages  :  al.,  6  Ired.   Eq.  57  ;  Pringle  v.  Pringle,  59 

Commonwealths.  Straub,  35 Penn. St.  137  ;  Penn.  St.  281  ;  but  if  given   for  the  pur- 

but  in  a   suit  upon  the  recognisance,  the  pose  of  defrauding  creditors,  it  is  void  : 

judgment    is    not    to   be   entered   for  the  Powell  f.  Inman,  8  Jones  L.  436.    And  see 

penalty  for  the  use  of  those  interested,  but  Candor   &   Henderson's  Ap.,  27  Penn.  St. 

for   the   damage   sustained   by  the  party  119;  Archer  t;.  Hart,  5  Florida  234. 


110  OF    CIIOSES    IN    ACTION. 

every  deed  imports  a  consideration, (s)  and  an  action  at  law  may  conse- 
quently be  brought  upon  a  voluntary  deed  Avhich  would  not  lie  upon  a 
mere  voluntary  contract.  But  in  administration  voluntary  bonds  and 
covenants  will  still  be  payable  after  other  debts  for  valuable  considera- 
tion, whether  specialty  or  simple  contract.  Debts  secured  by  bills  of 
exchange  and  promissory  notes  have  no  preference  over  the  other  simple 
contract  debts  of  the  deceased. (<) 

Thus  it  will  be  seen  that  until  recently  there  were,  according  to  the 
law  of  England,  five  principal  kinds  of  debts,  namely,  crown  debts, 
judgment  debts,  specialty  debts  in  which  the  heirs  were  bound,  specialty 
debts  in  which  the  heirs  were  not  bound,  and  simple  contract  debts. 
Each  of  these  classes  had  a  law  of  its  own,  and  remedies  of  varying 
degrees  of  efficacy.  According  to  natural  justice  one  would  suppose  that 
all  creditors  for  valuable  consideration  should  have  an  equal  right  to  be 
paid  ;  or  if  any  difference  were  allowed,  that  those  who  could  least  afford 
r*i -1-1-1  to  lose  should  be  preferred  to  the  others.  *Our  law,  however, 
takes  precisely  the  opposite  course,  and,  for  reasons  which  cer- 
tainly illustrate  the  history  of  England,  gives  to  the  crown,  representing 
the  public  in  the  aggregate,  who  can  best  afford  to  lose,  a  decided  prefer- 
ence over  private  creditors,  whose  loss  may  be  their  ruin.^  Again,  a 
debt  admitted  without  dispute  gives  the  creditor  far  less  advantage  than 
a  debt  wliich  has  been  contested  and  decreed  to  be  paid  by  the  judgment 
of  a  court  of  record.  The  proper  function  of  a  court  of  judicature  would 
seem  to  be  the  settlement  of  disputes.  In  our  law,  however,  the  judg- 
ment of  the  court  is  permitted  to  be  made  use  of  not  only  to  settle  con- 
tested claims,  but  also  as  a  better  security  for  money  admitted  to  be 
due.  The  reason  of  this  perversion  of  the  proper  end  of  a  judgment  has 
been  the  superior  advantages  possessed  by  a  creditor  having  a  judgment 
in  his  favor.  So  long,  however,  as  the  court  exercises  its  legitimate 
function  of  deciding  on  contested  claims,  there  seems  to  be  no  reason 
why  a  debt  established  by  the  decision  of  the  court  should  have  any  pre- 
ference over  one  which  has  never  been  disputed.  If  this  were  the  case, 
the  use  of  judgments  as  mere  securities,  by  collusion  or  agreement  of  the 
parties,  would  at  once  fall  to  the  ground;  and  an  end  would  be  put  to  a 
very  fruitful  source  of  litigation  and  fraud.  Practically  there  are  but 
two  reasons  why  payment  of  a  debt  is  withheld,  namely,  either  because 
the  debtor,  though  able  to  pay,  doubts  his  liability,  or  because  he  is  un- 

(«)  Ante,  pp.  87,  88.  (t)  Yeoman  v.  Bradshaw,  3  Salk.  164. 

*  See  ante,  p.  97,  note  1. 


OF   DEBTS.  Ill 

able  to  pay,  though  he  knows  he  is  liable.  In  the  first  case  an  action  at 
law  decides  the  question  ;  but  the  judgment  given  by  the  court  in  exer- 
cise of  its  proper  function  is  scarcely  ever  followed  by  the  taking  out  of 
execution.  The  debt  being  established,  the  debtor  pays  it,  and  the  judg- 
ment is  immediately  satisfied.  The  creditor  has  the  advantage  of  the 
decision  of  the  court,  but  he  has  no  occasion  for  any  of  those  extraor- 
dinary remedies  to  which  his  position  as  a  judgment  creditor  entitles 
him.  *If,  however,  the  debtor  is  unable  to  pay,  judgment  is  ob-  r^-i-jQ-i 
tained  merely  for  the  sake  of  its  fruit.  The  creditor  endeavors, 
by  suing  out  an  execution,  to  obtain  an  advantage  over  other  creditors, 
who  may  not  have  put  themselves  and  the  debtor  to  the  same  trouble 
and  expense.  But  inability  to  pay  one  debt  is  presumptive  evidence  of 
inability  to  pay  others  ;  and  when  a  man  is  unable  to  pay  all  his  cred- 
itors in  full,  it  is  time  that  a  distribution  should  be  made  of  his  property 
am'ongst  his  creditors  rateably.  The  extraordinary  privileges  conferred 
on  a  judgment  creditor  seem,  therefore,  in  most  cases,  practically  to  end 
in  an  undue  preference  of  a  pressing  creditor  over  others  who  have  as 
good  a  right  to  be  paid.  With  respect  to  the  three  last  classes  of  debts, 
namely,  debts  by  specialty  in  which  the  heirs  were  bound,  those  in 
which  the  heirs  were  not  bound,  and  simple  contract  debts,  the  dis- 
tinctions between  them  serve  principall}^  to  mark  the  steps  of  the 
struggle  by  which  the  rights  of  creditors  have  at  length  been 
obtained.  The  trophies  of  a  victory  so  hardly  won  can  scarcely  be 
expected  to  present  a  very  orderly  appearance.  The  rights  of  these 
creditors  accordingly  varied  with  the  accident  of  the  death  of  the  debtor, 
with  the  proportion  which  his  real  estate  might  have  borne  to  his  per- 
sonalty, and  with  the  circumstance  of  his  having  or  not  having  charged 
his  real  estate  by  his  will  with  the  payment  of  his  debts;  although,  as  we 
shall  see,  he  could  bring  them  all  to  a  level  by  becoming  a  bankrupt  if 
he  pleased.  It  was  surely  time  that  the  law  of  debtor  and  creditor 
should  be  placed  upon  some  more  simple  and  reasonable  footing.  This 
has  now  been  done  to  a  great  extent,  so  far  as  judgments  are  concerned, 
by  a  provision  in  the  Bankruptcy  Act,  1861, (m)  by  which,  as  we  have 
seen,  the  seizure  and  sale  of  the  goods  of  a  trader  debtor,  on  an  execu- 
tion for  a  sum  exceeding  fifty  *pounds,  was  made  an  act  of  r;(,--|-|q-i 
bankruptcy.  And  this,  though  now  repealed, (a;)  has  been  re- 
enacted  by  the  Bankruptcy  Act,  1869, (?/)  with  respect  to  sums  not  less 
than  fifty  pounds.^     The  act  which  has  placed  specialty  and  simple  con- 

(m)  Stat.  24  &  25  Vict.  c.  134,  s.  V3.  (z)  Stat.  32  &  33  Vict.  c.  83. 

(y)  Stat   32  &  33  Vict.  c.  11,  s.  6,  par.  (5). 

1  See  post,  p.  132,  note  {2k). 


113  OF    CnOSES    IN   ACTION. 

tract  creditors  on  the  same  footing  at  the  debtor's  decease(z)  is  an 
important  further  step  in  the  right  direction.  Further  improvements, 
however,  might  still  be  made.  There  seems  no  reason  why  claims  for 
.dilapidations  made  by  a  succeeding  incumbent  against  the  personal 
representatives  of  his  predecessor  should  rank  subsequently  to  all  other 
debts  instead  of  rateably  with  them, (a)  nor  why  a  debt  for  rent  should 
have  priority  in  payment  out  of  the  personal  estate  of  the  deceased  tenant 
over  his  other  just  debts  ;{b)  and  with  regard  to  Crown  debts  and  judg- 
ment debts  the  author's  opinion  has  already  been  expressed. 

The  next  subject  which  claims  our  attention  is  that  of  interest  upon 
debts.  The  absurd  prejudice  which  anciently  caused  interest,  under  the 
name  of  usury,  to  be  considered  unlawful,  retained  some  hold  upon  our 
law  long  after  the  taking  of  interest  was  rendered  lawful  by  act  of  parlia- 
ment.(6')  In  ordinary  cases  a  debtor  was  allowed  to  withhold  payment 
of  his  debt,  without  being  obliged  to  give  to  his  creditor  the  poor  recom- 
pense of  interest  on  the  money  he  was  making  use  of  for  his  own  benefit, 
For  until  recently  it  was  a  general  rule  of  law,  that  interest  was  not 
payable  on  any  debts,  whether  by  specialty  or  simple  contract,  unless 
expressly  agreed  on,  or  unless  a  promise  could  be  implied  from  the  usage 
of  trade  or  other  circumstances,  or  unless  the  debt  were  secured  by  a 
bill  of  exchange  or  promissory  note,  which,  being  mercantile  securities 
r*n4-1  ^^^^y^  carried  *interest.(tZ)  But  in  equity  interest  was  more 
frequently  alloAved.(<?)  And  now,  by  an  act  of  King  William  the 
rourth,(/)  interest  is  recoverable  on  all  debts  payable  by  virtue  of  any 
written  instrument,  at  a  certain  time,  from  the  time  when  such  debts 
were  payable,  or  if  payable  otherwise,  then  from  the  time  when  demand 
of  payment  shall  have  been  made  in  writing,  so  as  such  demand  give 
notice  to  the  debtor  that  interest  will  be  claimed  from  the  date  of  such 
demand  until  the  time  of  payment.^ 

The  payment  of  a  debt  is  sometimes  secured  by  a  surett/,  who  makes 

(z)  Stat.  32  &  33  Vict.  c.  46. 

(a)  Ante,  p.  69.  (i)  Ante,  p.  105. 

(c)  Stat.  37  Hen.  VIII.  c.  9.     See  ante,  p.  5. 

(d)  Higgins  r.  Sargent,  2  B.  &  C.  348  [E.  C.  L.  R.  vol.  9) ;  s.  c.  3  D.  &  R.  613  ;  Fos- 
ter V.  Weston,  6  Bing.  709  (E.  C.  L.  R.  vol.  19) ;  Page  v.  Newman,  9  B.  &  C.  378  (E.  C. 
L.  R.  vol.  17). 

(e)  See  Lowndes  v.  Collins,  17  Ves.  27  ;  2  Fonb.  Eq.  429 ;  C.  P.  Cooper  426  et  seq. 
if)  Stat.  3  &  4  Will.  IV.  c.  42,  ss.  28,  29  ;  Hyde  v.  Price,  8  Sim. 


1  See  ante,  p.  94,  note  1,  and  p.  102,  note  1. 


OF   DEBTS. 


114 


himself  liable,  together  with  the  principal  debtor,  for  the  payment.^     If 
the  surety  should  pay  the  debt,  he  will  become  the  creditor  of  the  prin- 


1  Although  in  the  case  of  principal  and 
surety,  the  liability  of  the  latter  is  not  of 
a  primary  character,  yet  the  creditor  is  not 
bound  to  pursue  the  principal,  before  re- 
sorting to  the  surety:  Abercrombie  v. 
Knox,  3  Ala.  728;  but  in  Pennsylvania,  a 
distinction  has  been  taken  between  surety 
and  guarantee  ;  where  the  latter  term  is 
used,  and  the  contract  is  of  that  nature, 
the  creditor  must  enforce  his  remedies 
against  the  principal  debtor,  before  he  re- 
sorts to  the  guarantor  ;  or,  he  must  show 
that  the  affairs  of  the' principal  debtor 
were  in  such  condition,  that  any  pursuit 
of  him  would  have  been  utterly  fruitless  : 
Parker  v.  Culvertson,  1  Wall.  Jr.  149; 
Margerger  et  al.  v.  Pott,  16  Penn.  St.  9  ; 
Stroehecker  v.  The  Farmers'  Bank,  G  Penn. 
St.  44 ;  Johnson  v.  Chapman,  3  Penna.  R. 
18  ;  Rudy  v.  Wolfe  et  al.,  Admrs.,  16  S.  & 
R.  79  ;  Koch  v.  Melhorn,  25  Penn.  St.  89; 
Campbell  v.  Baker,  46  Id.  245;  Gil- 
bert V.  Henck,  32  Id.  205 ;  and  this  dis- 
tinction is  very  clearly  maintained  in  in- 
ternational contracts :  Chitty's  Vattel's 
Law  of  Nations,  book  2,  chap.  16,  ^  240  ; 
and  see  also,  Mackie's  Exr.  v.  Davis, 
&c.,  2  Wash.  229  ;  Berksdale  v.  Fenwick, 
2  Hen.  &  Munf.  113,  n. ;  Crumpston  v. 
McNair,  1  Wend.  457  ;  Reynolds  v.  Edney, 
8  Jones  (N.  C.^  406  ;  in  which  case  it  was 
held  that  even  in  case  of  insolvency,  no- 
tice of  default  of  the  primary  debtor  must 
be  given,  before  suit  can  be  brought  against 
one  liable  if  the  primary  debtor  did  not 
pay  ;  but  the  term  "  guaranty,"  will  not 
make  the  contract  of  that  character,  when 
it  is  in  the  nature  of  a  contract  of  surety  : 
Sherman  v.  Roberts,  1  Grant's  Cas.  261  ; 
Campbell  v.  Baker,  46  Penn.  St.  245  ;  and 
since  the  Act  of  Assembly  of  29th  of  April, 
1855,  a  parol  contract  of  guaranty  will 
not  be  enforced  :  Jack  v.  Morrison,  48 
Id.  113.  If  the  surety  pays  the  debt,  he 
has  a  right  to  call  upon  the  principal  for 
indemnification  :  Williams  v.  Williams,  5 
Ohio  444  ;  Odlin  v.  Gre.enleaf,  3  N.  H.  270  ; 
Gibbs  V.  Bryant,  1  Pick.  118;  Peters  v. 
10 


Barnhill,  1  Hill  (S.  C.)  234  ;  Hunt  v.  Ami- 
don,  4  Hill  345  ;  Wesley  Church  v.  Moore 
et  al.,  10  Penn.  St.  273  ;  McCrea  v.  Pur- 
mont,  16  Wend.  460  ;  s.  c.  5  Paige  620  ; 
Heart  v.  Johnson,  13  Vt.  19  ;  Manri  v. 
Hefferman,  15  Johns.  58  ;  Pigou  v.  French, 
1  Wash.  C.  C.  278;  Bennett  v.  Buchanan, 
3  Port.  (Ind.)  47  ;  Williamson's  Admrs.  v. 
Hall,  1  McCook  190;  Collins,  Admr.,  v. 
Boyd,  14  Ala.  505  ;  Hommell  v.  Gamewell, 
5  Blackf.  5  ;  Shepherd  v.  Ogden,  2  Scam. 
257;  Hill  v.  Campbell,  10  B.  Mon.  80; 
Laughlin  v.  Ferguson,  6  Dana  113;  Clark 
V.  Foxcroft,  7  Maine  348  ;  Gillespie,  Admr., 
V.  Cresswell  et  al.,  12  Gill  &  Johns.  27  ; 
Mowry  v.  Adams,  14  Mass.  327;  Williams 
et  ux.  V.  Moore,  9  Pick.  432  ;  Appleton  et 
al.  V.  Bascomb  et  al.,  3  Mete.  171;  Wood 
V.  Leland,  1  Id.  389  ;  Ford  v.  Keith,  1 
Mass.  138 ;  Johnson  r.  Johnson,  11  Id. 
359  ;  The  State,  to  the  use,  &c.,  v.  Rey- 
nolds et  al.,  3  Mo.  70  ;  Jeffers  et  al.  v. 
Johnson,  1  Zabr.  76  ;  Chace  v.  Hinman,  8 
Wend.  452  ;  Aberdeen  v.  Blackwell,  6  Hill 
324  ;  Bonney  v.  Seely  et  al.,  2  Wend.  481 ; 
Powell  V.  Smith,  8  Johns.  249;  Tom  v. 
Goodrich,  2  Id.  213  ;  Gould  v.  Gould,  8 
Cowen  168  ;  Wynn,  Admr.,  v.  Brooke  et 
al.,  5  Rawle  106  ;  Cornwell's  Ap.,  7  W.  & 
S.  305  ;  Pursel  v.  Ellis,  5  Id.  525  ;  Baily  v. 
Brownfield,  20  Penn.  St.  41 ;  Apgar  v. 
Hiller,  4  Zabr.  812;  Mundorff  v.  Wicker- 
sham,  63  Penn.  St.  87  ;  for  by  the  very  fact  of 
payment,  he  becomes  the  creditor  of  the 
principal,  taking  the  position  which  the 
original  creditor  held,  and  entitled  to  all 
the  preferences  which  the  original  cred- 
itor claimed;  the  obligation  of  re-imburse- 
ment  being  founded  either  upon  express 
contract  between  the  parties,  or  the  im- 
plied promise  raised  by  the  law  upon  the 
payment  of  money  for  another  at  his  re- 
quest: Hill  V.  Wright,  23  Ark.  530; 
Youghe  V.  Linton,  6  Richard.  275  ;  Win- 
chester V.  Beardin,  10  Humph.  247  ;  Mc- 
Daniels  v.  The  Flower  Brook  Manufactur- 
ing Company,  23  Vt.  274  ;  Wescott  v.  King, 
14  Barb.  S.  C.  33;  Foster  v.  The  Trustees 


114 


OF   CIIOSES    IN    ACTION. 


cipal  debtor  for  the  amount ;  but  although  the  debt  paid  should  have 
been  secured  to  the  original  creditor  by  the  bond  under  seal  of   the 


of  the  AUiena^um,  3  Ala.  310  ;  Sanders  et 
al.  «'.  Watson  et  al.,  14  Id.  198  ;  McDowell 
V.  The  Hank  of  Wilmington  and  Brandy- 
wine,  1  Marring.  3G9  ;  Pitzer  u.  Harmon,  8 
Blackf.  112  ;  Schoolfield's  Admr.  v.  Riidd, 
&c.,  9  B.  Mon.  292  ;  Grider  v.  Payne,  9 
Dana  191  ;  Patterson  v.  Pope,  5  Id.  243; 
Sargent  v.  Salmond  et  al.,  27  Maine  348  ; 
Eppes  et  al.,  Exrs.,  v.  Randolph,  2  Call 
103;  Graves  v.  Webb,  1  Id.  443;  Tinsley 
V.  Oliver's  Admr.,  &c.,  5  Munf.  419  ;  Tins- 
ley  V.  Anderson,  3  Call  329;  Enders,  &c., 
V.  Brune,  4  Rand.  438  ;  Watts  et  al.  v. 
Kinney  et  ux.,  3  Leigh  272 ;  Cole  Co. 
et  al.  V.  Augbey  et  al.,  12  Mo.  132;  The 
New  York  State  Bank  v.  Fletcher,  5  Wend. 
85 ;  Clason  et  al.  v.  Morris  et  al.,  As- 
signees, 10  Johns.  524  ;  Waddington  et  al. 
V.  Verdenburgh,  2  Johns.  Ch.  227  ;  Sal- 
mon I'.  Clagett,  3  Bland.  173  ;  Farmers' 
Bank  of  Reading  v.  Gibson,  6  Penn.  St. 
51  ;  Sears  v.  Laforce,  17  Iowa  473  ;  and  it 
has  been  held,  that  where  the  principal 
became  insolvent,  and  made  an  assign- 
ment for  the  benefit  of  his  creditors,  pre- 
vious to  the  payment  by  the  surety,  the 
surety  was  notwithstanding,  entitled  to 
full  indemnification  :  Haddens  i'.  Cham- 
bers, 2  Dall.  236;  McMullen  v.  The  Bank 
of  Penn  Township,  2  Penn.  St.  343;  Bea- 
ver V.  Beaver,  23  Id.  167  ;  for  payment 
by  a  surety  has  such  a  reference  back  to 
the  original  undertaking,  that  it  overrides 
all  intermediate  equities,  as  of  an  assignee 
of  a  claim  against  the  surety,  assigned  by 
the  principal,  before  payment :  Barney  v. 
Grover,  28  Vt.  391. 

Not  only  is  the  surety  who  pays  the 
debt  of  his  principal,  entitled  to  hold  the 
position  as  to  priority,  which  the  original 
creditor  occupied,  but  also  to  be  subro- 
gated to  all  the  rights,  privileges,  or  liens, 
which  were  enjoyed  by  the  first  creditor  : 
King  I'.  Baldwin  et  al.,  2  Johns.  Ch.  554  ; 
La  Farge  i'.  Herter  et  al.,  11  Barb.  S  C. 
159;  McDaniels  v.  The  Flower  Brook 
Manufac.  Co.,  23  Vt.  274;  Goodyear  v. 
Watson,  14  Barb.  S.  C.  481 ;  Bradley  etal., 


V.  Spafford,  3  Fost.  444 ;  N.  Y.  Savings  Bk. 
V.  Colcord,  15  N.  H.  119;  Foster  v.  The 
Trustees  of  the  Athenaeum.  3  Ala.  310; 
Lumpkin,  Admr.,  v.  Mills,  4  Geo.  343  ; 
Perkins  et  al.  v.  Kershaw  et  al.,  1  Hill 
351;  Burrows  v.  McWhann,  1  Dess.  409; 
Sprigg  V.  Braman,  6  La.  59;  Cheese- 
borough  V.  Millard,  1  Johns.  Ch.  413; 
Cuyler  v.  Ensworth,  6  Paige  32  ;  Ontario 
Bk.  V.  Walker  et  al.,  1  Hill  (N.  Y.)  652; 
State  Bk.  v.  Fletcher,  5  Wend.  85  ;  Mathews 
V.  Aikin,  1  Comst.  599;  Schnitzel's  Ap., 
49  Penn.  St.  23 ;  Irick  v.  Black,  2  Green 
(N.  J.)  189  ;  and  the  surety,  also,  may, 
after  payment,  claim  the  benefit  of  all 
collaterals,  held  by  the  creditor  to  secure 
his  debt ;  McDaniels  v.  The  Flower  Brook 
Manufac.  Co.,  23  Vt.  274  ;  In  the  matter  of 
Samuel  H.  Babcock,  3  Story  393  ;  N.  Y. 
Savings  Bk.  v.  Colcord,  15  N.  H.  119; 
Foster  v.  The  Trustees  of  the  Athenaeum, 

3  Ala.  310  ;  Lyon  v.  Leavit  et  al..  Id.  430  ; 
Cullum  V.  Emanuel  et  al.,  1  Id.  23  ;  Brown 
V.  Lang  et  al.,  4  Id.  53  ;  Hampton  v.  Levy, 
1  McCord   112;  Worthiugton  y.  Ferguson, 

4  Har.  &  Johns.  522  ;  Tankersley  v.  Ander- 
son, 4  Dessaus.  44  ;  Miller  v.  Pendleton,  4 
Hen.  &  Munf.  436;  McDowell  d.  The  Bk. 
of  Wilmington  and  Brandywine,  1  Harring. 
369  ;  Bradford,  Admr.,  et  al.  v.  Marvin  et 
al.,  2  Fla.  475  ;  Patterson  ty  Pope,  5  Dana 
243  ;  Norton  v.  Soule,  2  Maine  341  ;  Rich- 
ardson V.  The  Washington  Bk.,  3  Mete. 
540  ;  Green  v.  Kemp,  13  Mass.  515;  Bow- 
ditch  V.  Green,  3  Mete.  363 ;  Miller  v. 
Woodward  et  al.,  Admrs.,  8  Mo.  169; 
Crump  et  al.  v.  McMurtry,  Id.  408  ;  Elwood 
et  al.  V.  Deifendorf  et  al.,  5  Barb.  S.  C. 
398 ;  Hodges  v.  Armstrong,  Admr.,  3  Dev. 
253;  Kinley  v.  Hill,  4  W.  &  S.  426;  Knox 
V.  Moatz,  15  Penn.  St.  74;  Erb's  Ap.,  2 
Penna.  R.  298  ;  Cornwell's  Ap.,  7  W.  &  S. 
398  ;  Lathrop's  Ap.,  1  Penn.  St.  512  ;  Wine- 
brenner's  Ap.,  7  Id.  333;  Pott  w.  Nathans, 
1  W.  &  S.  155  ;  Rittenhouse  v.  Levering,  6 
Id.  190  ;  Yard  v.  Patton,  13  Penn.  St.  287  ; 
Gossin  V.  Brown,  II  Id.  531  ;  Miller  et  al., 
Assignees,    v.    Ord.,    Exr.,    2    Binn.    382 


OF   DEBTS. 


114 


debtor  and  his  surety,  the  surety  having  paid  the  debt,  would  until  re- 
cently have  become  the  simple  contract  creditor  only  of  the  principal 


Pride  v.  Boyce,  Admr.,  Rice  Eq.  275; 
Exrs.  of  Gadsden  v.  Exrs.  of  Lord,  1 
Dess.  214  ;  Uzzel  v.  Mack,  4  Humph.  319  ; 
Bower's  Est.,  23  Penn.  St.  294;  Brewer 
V.  Franklin  Mills,  42  N.  H.  292  ;  so  where 
one  of  two  sureties  holds  of  the  principal 
securities  for  indemnity,  and  the  other 
surety  pays  the  debt,  he  becomes  entitled 
to  the  securities  so  held  by  his  co-surety: 
Butler  V.  Birkey,  13  Ohio  St.  514  ;  Schmidt 
V.  Coulter,  6  Minn.  492  ;  and,  it  seems  to  be 
generally  allowed  in  the  American  States, 
which  have,  in  this  respect,  placed  the 
doctrine  of  principal  and  surety  on  a  wider 
and  more  liberal  basis,  than  that  pre- 
scribed by  the  law  of  England,  that  where 
the  claim  of  the  creditor  is  evidenced  by 
bond,  judgment,  &c.,  the  claim  is  not  ex- 
tinguished by  the  payment  of  the  debt  by 
the  surety,  but  that  it  is  still  subsisting 
for  his  benefit,  and  he  will  be  entitled  to 
an  assignment  of  the  bond,  judgment,  or 
other  evidence  of  the  debt,  or  to  deal  with 
it  as  if  it  were  actually  assigned  to  him, 
and  enjoy  from  it  all  the  advantages  which 
the  original  creditor  could  have  obtained. 
In  some  of  the  States  this  right  has  been 
conferred  upon  the  surety  by  equitable 
adjudication,  and  in  others  it  is  expressly 
given  by  statute  :  Edgerly  v.  Emerson,  3 
Fost.  555 :  Grove  v.  Brien,  1  Md.  439 ; 
Carroll,  Exr.,  v.  Bowie,  7  Gill  34  ;  Good- 
year V.  Watson,  14  Barb.  S.  C.  481  ; 
McDowell  V.  The  Bank  of  Wilmington  and 
Brandywine,  1  Earring.  3G9  ;  Davenport  v. 
Hardeman,  5  Geo.  580  ;  Bailey  v.  Mizell,  4 
Id  123  ;  Harris  v.  Wynne,  Id.  521  ;  Morris 
V.  Evans  et  al.,  2  B.  Mon.  86  ;  Morris  v. 
Page,  9  Dana  433 ;  Norton  v.  Soule,  2 
Maine  341  ;  Creager  v.  Brengle,  5  Har.  & 
Johns.  234;  Merryman  et  al.  v.  The  State, 
at  the  instance  of  Harris,  Id.  423 ;  Cole- 
gate,  &c.,  V.  The  Fredericktown  Savings 
Institution,  &c.,  11  Id  114;  Hollingsworth, 
Admr.,  v.  Floyd,  2  Har.  &  Gill  87  ;  Erb's 
Ap.,  2  Penna.  R.  298  ;  Gossin  v.  Brown,  11 
Penn.  St.  532  ;  Croft  v.  Moore,  9  Watts 
451 ;  Morris  v.  Oakford,  9  Penn.  St.  49S  ; 


Lathrop's  Ap.,  1  Id.  517;  Burns  et  al.  «. 
The  Huntingdon  Bank,  1  Penna.  R.  395 ; 
Exrs.  of  Gadsden  v.  Exrs.  of  Lord,  1  Dess. 
214;  Gunn  et  al.  v.  Tunnehill,  2  Yerg. 
244  ;  Floyds  v.  Goodwin,  8  Id.  494  ;  Wade 
V.  Green,  and  Green  v.  Wade,  3  Humph. 
547  and  558  ;  Robinson  et  al.  v.  Sherman 
et  al.,  2  Gratt.  181  ;  Powell's  Exrs.  v. 
White  et  al.,  11  Leigh  309;  McCormick's 
Admrs.  v.  Irwin,  35  Penn.  St.  Ill;  Denny 
I'.  Lyon,  38  Id.  98;  Jones  w.  Turcher,  15 
Ind.  308 ;  Hanner  v.  Douglass,  4  Jones  Eq. 
262  ;  Fawcetts  v.  Kimmey,  23  Ala.  162  ; 
Connely  v.  Bourg,  16  La.  Ann.  108  ;  Neil- 
son  V.  Fry,  16  Ohio  553  ;  Furnold  v.  Bk.  of 
State  of  Mo.,  44  Mo.  336  ;  Richter  v.  Cum- 
mings,  60  Penn.  St.  441  ;  but  this  last 
position  is  denied  by  several  cases,  favor- 
ing the  recent  English  doctrine  :  Foster  v. 
The  Trustees  of  the  Athenteum,  3  Ala. 
310;  Morrison  et  al.  v.  Marvin,  6  Id.  797; 
Sanders  et  al.  v.  Watson  et  al.,  14  Id.  198  ; 
Uzzell  V.  Mack,  4  Humph.  319;  Miller  v. 
Porter,  5  Id.  298. 

Inasmuch  as  the  surety  who  pays  the 
debt,  is  entitled  to  the  benefit  of  all  the 
collaterals  held  by  the  creditor,  it  follows 
as  a  consequence,  that  the  creditor  is 
bound  to  take  care  of  them,  and  if  he  parts 
with  them,  or  they  become  impaired  in 
value,  by  his  own  act,  the  surety  will  be 
discharged,  either  absolutely,  or  pro  tanto, 
in  proportion  to  the  value  of  the  security, 
which  has  been  lost:  Hayes  v.  Ward,  4 
Johns.  Ch.  123  ;  Baker  v.  Briggs,  8  Pick. 
122;  Goodloe  v.  Clay,  6  B.  Mon.  226; 
Ward  V.  Vass,  7  Leigh  135  ;  Payne  v.  The 
Commercial  Bk.,  6  Sm.  &  M.  24  ;  Nefi^s 
Ap.,  9  W.  &  S.  36;  Everley  v.  Rice,  20 
Penn.  St.  297;  Holt  v.  Body,  6  Id.  207; 
Smith  V.  Day,  23  Vt.  656 ;  N.  Y.  Savings 
Bank  v.  Colcord,  15  N.  H.  119 ;  Pitts  et  al. 
V.  Congdon,  2  Comst.  352  ;  Bank  of  Get- 
tysburg V.  Thompson,  3  Grant's  Cas.  117; 
Barrow  v.  Shields,  13  La.  Ann.  57  ;  Hurd 
V.  Spencer,  40  Vt.  581  ;  and  so,  where  the 
creditor  has  it  in  his  power  to  receive  pay- 
ment of  the  whole,  or  a  part  of  his  debt, 


114 


OF   CIIOSES    IN    ACTION. 


(lel)tor;  unless  be  should  have  taken  the  precaution  to  procure  from 
such  debtor  a  counter-bond  for  his  own  indemnity. (^)     The  surety,  how- 


(ff)  Copis  V.  Middleton,  Turn.  &  Russ.  224. 


and  neglects  his  opportunity,  the  surety 
will  be,  pro  tanlo,  discharged :  Ramsey  v. 
The  Westmoreland  Rank,  2  Penna.  R.  203 
Commonveallh  v.  Miller,  8  S.  &  R.  452 
Lichlenthalcr  v.  Thompson,  13  Id.  157 
Pipher  v.  Lodge,  16  Id.  214;  Common- 
wealth I'.  Haas,  Id.  252;  Dixon  v.  Ewing, 
3  Ohio  230 ;  Carpenter  v.  Devon,  6  Ala. 
718;  Sraeed  v.  White,  3  J.  J.  Marsh.  525; 
Givens  r.  Briscoe,  Id.  534;  Jones  v.  Bul- 
lock, 3  Bibb  467;  The  Farmers'  Bank 
of  Canton  v.  Reynolds,  13  Ohio  84;  Baker 
V.  Fonlyce,  9  Penn.  St.  275 ;  Talmage  v. 
Burlingame,  Id.  21 ;  Ferguson  v.  Turner,  7 
Mo.  497 ;  Curan  v.  Colbert,  3  Ga.  239 ; 
Brown  v.  Riggins,  3  Id.  406;  The  State 
Bank  v.  Edwards  et  al.,  20  Ala.  512  ;  Exrs. 
of  Riggins  v.  Brown,  12  Ga.  273  ;  Everly 
V.  Price,  20  Penn.  St.  297 ;  Richards  v. 
Commonwealth,  40  Id.  146. 

The  fact  that  a  surety  has  a  right  to  look 
to  his  principal,  for  all  payments  made  by 
that  surety  on  the  principal's  behalf,  fur- 
nishes one  of  the  reasons,  why  a  contract 
made  between  the  principal  and  creditor, 
to  postpone  the  day  of  payment  (or  other 
completion  of  the  original  agreement),  to 
which  the  surety  is  not  a  party,  will  dis- 
charge the  surety  from  his  liability ;  for 
the  creditor  is  bound  to  proceed  against 
the  principal  at  the  desire  of  the  surety, 
which  is  a  privilege  granted  to  the  surety 
for  his  protection,  and  if,  by  his  express 
agreement  with  the  principal,  the  creditor 
is  prevented  from  pursuing  his  remedy 
when  requested,  he  is  prevented  from  ful- 
filling his  implied  contract  with  the  surety, 
who  is  thereby  discharged,  unless  he  be 
privy,  or  consent  to,  the  new  agreement; 
but  see  on  this  subject:  King  v.  Baldwin 
et  al.,  2  Johns.  Ch.  554;  Brinager's  Admr. 
V.  Phillips,  1  B.  Mon.  283;  United  States 
V.  Samuel  &  Jno.  L.  Howell,  4  Wash.  C.  C. 
020;  The  Bank  of  Steubenville  v.  Carrol 
et  al.,  Admrs.,  5  Ohio  207  ;  The  Trustees 
V.  Miller,   3   Id,   261  ;   Niblo   v.   Clark,   3 


Wend.  24  ;  s.  c.  6  Id.  236;  Bank  of  Wash- 
ington V.  Barrington,  2  Penna.  R.  27  ; 
Walrath  v.  Thompson,  6  Hill  540  ;  s.  c.  2 
Comst.  185;  Birkhead  v.  Brown,  5  Hill 
634;  Dobbin  v.  Bradley,  17  Wend.  422; 
Fellowes  v.  Prentiss,  3  Denio  512  ;  Hibbs 
V.  Rue,  4  Penn.  St.  348;  Walsh  v.  Bailie, 
10  Johns.  180  ;  Wright  v.  Judson,  8  Wend. 
512  ;  Gifford  v.  Allen,  3  Mete.  255;  Greely 
V.  Dow,  2  Id.  176;  Rathbone  v.  Warren, 
10  Johns.  587;  Crosby  v.  Wyatt,  10  N.  H. 
318  ;  Hutchinson  v.  Moody,  18  Maine,  393  ; 
Leavitt  v.  Savage,  16  Id.  72  ;  Davis  v.  The 
People,  3  Gilm.  409;  Comegys  v.  Booth,  3 
Stew.  14;  Inge  t;.  The  Branch  Bank,  8 
Peters  108 ;  Clippenger  v.  Cripps,  2  Watts 
45  ;  The  Bank  of  Steubenville  v.  Hoge,  6 
Ohio  17;  Wayne  v.  Kirby,  2  Bail.  531; 
Denis  v.  Reeder,  2  McCord  451  ;  Reddish 
V.  Watson,  5  Ohio  510;  Baldwin  v.  The 
W'estern  Reserve  Bank,  Id.  273  ;  Hunter's 
Admr.  v.  Jett,  4  Rand.  104;  Dundas  v. 
Sterling,  4  Penn.  St.  73 ;  Crosby  v.  Wyatt, 
10  N.  H.  318;  The  Stafford  Bank  w.  Crosby, 
8  Maine  191;  Blackstone  Bank  v.  Hill,  10 
Pick.  129 ;  Bagley  v.  Burzell,  19  Maine 
88 ;  Rhoads  v.  Frederick,  8  Watts  448 ; 
Payne  v.  The  Commercial  Bank  of  Natchez, 
6  Sm.  &  M.  24 ;  Wellington  v.  Gary,  7  Id. 
522  ;  Joslyn  v.  Smith,  15  Vt.  353;  Waters 
V.  Simpson,  2  Gilm.  576  ;  Braman  v.  Hawk, 
1  Blackf.  392  ;  Cornan  v.  The  State,  4  Id. 
241  ;  Horter  v.  Moore,  5  Id.  367  ;  Parnell 
V.  Price,  3  Rich.  121 ;  Miller  v.  Stein,  2 
Penn.  St.  286  ;  Munford  v.  The  Overseers 
of  the  Poor,  2  Rand.  313  ;  Harnsberger's 
Exr.  V.  Geiger's  Admr.,  2  Gratt.  144  ;  Rey- 
nolds V.  Ward,  5  Wend.  501 ;  Bank  of  Utica 
V.  Ives,  17  Id.  501 ;  McKinney's  Exr.  v. 
Waller,  4  Leigh  434  ;  Alcock  v.  Hill,  4  Id. 
622  ;  Nichols  v.  Douglass,  3  Mo.  49  ;  Tudor 
V.  Goodloe,  1  B.  Mon.  322  ;  Anderson  v, 
Manon,  7  Id.  217;  Duncan  v.  Reid,  8  Id. 
382;  Pyle  t>.  Restock,  10  Ala.  589  ;  s  c.  11 
Id.  256;  Vilas  v.  Pusey,  1  Comst.  274; 
Pyle  V.  Clark,  3  B.  Mon.  262  ;  Scott  v.  HuU, 


OF    DEBTS. 


114 


ever,  would  have  been  entitled  to  the  benefit  of  all  collateral  securities 
which  the  creditor,  whom  he  had  repaid,  held  for  the  debt ;  but  he  was 


6  Id.  285;  Graves  v.  Graves,  Id.  213; 
MuUin  V.  McCoan,  7  Paige  452  ;  Bangs  v. 
Strong,  11  Id.  11;  s.  c.T  Hill  250;  Huffman 
V.  Hurlburt,  13  Wend.  377;  Hallett  v. 
Holmes,  18  Johns.  28  ;  Fletcher  t>.  Gamble, 
9  Ala.  335  ;  Bower  v.  Tiernan,  3  Denio 
378;  Yancey  v.  Littlejohn,  2  Hawk.  525; 
Branch  Bank  of  Mobile  v.  James,  9  Ala. 
949  ;  Grafton  Bank  v.  Woodward,  5  N.  H. 
99;  Bailey  v.  Adams,  10  Id.  162;  Fowler 
V.  Brooks,  13  Id.  240;  McComb  v.  Kete- 
ridge,  14  Ohio  348;  Spring  v.  The  Bank  of 
Mount  Pleasant,  10  Peters  257  ;  McLemore 
V.  Powell  et  al.,  12  Wheat.  554  ;  Bank  of 
the  United  States  v.  Hatch,  6  Peters  250  ; 
United  States  v.  The  Admrs.  of  Hillegas,  3 
Wash.  C.  C.  70 ;  Miller  v.  Stewart,  4  Id.  26  ; 
s.  c.  9  Wheat.  680  ;  United  States  v.Tillot- 
son  et  al.,  1  Paine  C.  C.  306 ;  Gass  v. 
Stinson,  2  Sumn.  453  ;  Suydara  &  Co.  v. 
Vance,  2  McL.  99;  The  Seventh  Ward 
Bank  v.  Hanrick,  2  Story  416;  Low  v.  Un- 
derbill, 3  McL.  376 ;  Musgrave  et  al.  v. 
Glasgow,  3  Port.  (Ind.)  31 ;  Cheek  et  al.  v. 
Glass,  Id.  286  ;  Herbert  v.  Dumont  et  al., 
Id.  346;  Govan,  Exrx.,  v.  Binford,  25 
Miss.  151  ;  Thornton  et  al.  v.  Dobney,  23 
Id.  559;  Prescott  v.  Brinsley  et  al.,  6 
Cush.  233  ;  Mottram  et  al.  v.  Mills,  2  Sandf. 
S.  C.  189  ;  Wagman  et  al.  v.  Hoag,  14  Barb. 
S.  C.  232  ;  La  Farge  v.  Herter  et  al.,  11  Id. 
159  ;  Turrill  v.  Boynton  et  al.,  23  Vt.  142; 
Whittle  V.  Skinner,  Id.  531  ;  Wadsworth 
et  al.  V.  Allen,  &c.,  8  Gratt.  174  ;  Brubaker 
V.  Okeson,  36  Penn.  St.  519  ;  Strickler  v. 
Burkholder,  47  Penn.  St.  476;  Wright  v. 
Storrs,  6  Bosw.  600  ;  Pilgrim  v.  Dykes,  24 
Texas  383  ;  Cunningham  v.  Wrenn,  23  111. 
64  ;  Rowan  v.  Sharps,  &c.,  Co.  33  Conn.  1  ; 
Winter's  Ap.,  61  Penn.  St.  307. 

That  the  surety  will  be  discharged, 
where  he  is  injured  by  the  creditor  neglect- 
ing to  proceed  against  the  principal  upon 
the  surety's  request,  see  the  following 
cases:  Pain  v.  Packard  et  al.,  13  Johns. 
174;  King  v.  Baldwin  et  al.,  17  Id.  384; 
United  States  v.  Simpson,  3  Penna.  R. 
437  ;    Strader  v.  Houghton.  9  Port.   334  ; 


Towns  V.  Riddle,  2  Ala.  694  ;  Cope  v. 
Smith,  8  S.  &  R.  110;  Gardner  v.  Ferree, 
15  Id.  28  ;  The  Erie  Bank  v.  Gibson,  I 
Watts  143  ;  Wilson  v.  Glover,  3  Penn.  St. 
404;  Greenawalt  v.  Kreider,  Id.  264; 
Wright  V.  Stockton,  5  Leigh  153  ;  Parrish 
V.  Gray,  1  Humph.  88  ;  Braman  v.  Honck, 
1  Blackf.393  ;  Morland  v.  The  State  Bank, 

1  Breese  207  ;  Howard  v.  Brown,  3  Geo. 
523;  Bolton  v.  Lundy,  6  Misso.  46;  Brice 
V.  Edwards,  1  Stew.  11 ;  Goodman  v. 
Griffin,  3  Id.  160  ;  Shehan  v.  Hampton,  8 
Id.  942;  Huffman  v.  Hurlbert,  13  Wend. 
377;  Herrick  v.  Borst,  4  Hill  650  ;  Beards- 
ley  V.  Warner,  6  Wend.  610  ;  s.  c.  8  Id. 
194  ;  Beebe  v.  The  West  Branch  Bank,  7 
W.  &  S.  375;  Bellows  v.  Lovell,  5  Pick. 
307  ;  Adams  Bank  v.  Anthony,  18  Id.  238  ; 
Hubbard  v.  Davis,  1  Aiken  296;  Mont- 
pelier  Bank  v.  Dixon,  4  Vt.  599;  Page  v. 
Webster,  15  Maine,  249  ;  Mahurin  v.  Pear- 
son, 8  N.  H.  539  ;  Pintard  v.  Davis,  1 
Spencer  205 ;  Croughton  v.  Duval,  3  Call 
61  ;  Denis  v.  Rider,  2  McL.  451 ;  Jenkins 
V.  Clark,  7  Ohio  72  ;  In  the  matter  of 
Saml.  H.  Babcock,  3  Story  393  ;  Overturf 
r.  Martin,  2  Cart.  (Ind.)  507;  Wetzel  v. 
Sponsler's  Exrs.,  18  Penn.  St.  460  ;  Mer- 
ritt  V.  Lincoln,  21  Barb.  249;  Taylor  v. 
Davis,  38  Miss.  493.  But  unless  so  re- 
quested, the  creditor  is  not  bound  to  pro- 
ceed against  the  principal,  and  mere 
delay,  or  inaction  on  the  part  of  the  cre- 
ditor in  pursuing  his  remedy,  will  not  dis- 
charge the  surety:  King  v.  Baldwin  et  al., 

2  Johns  Ch.  554;  Fulton  v.  Matthews,  15 
Johns.  433  ;  The  People  v.  Russell,  4  Wend. 
570;  Hunt  v.  Bridgham,  2  Pick.  581  ;  Jor- 
dan V.  Trumbo,  6  Gill  &  Johns.  103; 
Sebley  v.  McAllister,  8  N.  H.  389 ;  The 
Farmers'  Bank  of  Canton  v.  Reynolds,  13 
Ohio  84;  Haynes  v.  Corrington,  9  Sm.  & 
M.  479 ;  Anderson  v.  Menon,  7  B.  Mon. 
217;  Johnson  v.  Searcy,  4  Yerg.  182; 
Dawson  v.  The  Real  Estate  Bank,  5  Ark. 
283;  United  States  v.  Hunt,  1  Gall.  32; 
Townsend  v.  Riddle,  2  N.  H.  448;  Tudor 
V.  Goodloe,  3  B.  Mon.  332  ;    Commercial 


114 


OF   CHOSES    IN   ACTION. 


not  to  be  entitled  to  the  original  bond  executed  by  the  debtor,  because 
that  was    at  an    end  by  the  very  fact   of  the  payment.(A)      In   the 

(A)  Turn.  &  Russ.  231  ;  Dowbiggcn  v.  Bourne,  2  You.  &  Col.  462  ;  Jones  v.  Davids, 
4  Russ.  277  ;  Caulfield  v.  Maguire,  2  Jones  &  Lat.  164,  168. 


Bank  v.  French,  21  Pick.  486  ;  Alcock  v. 
Hill,  4  Leigh  622  ;  Harrison  v.  Lane,  4 
Bibb  466;  Spring  v.  The  Bank  of  Mount 
Pleasant,  10  Peters  257  ;  Reynolds  v.  Ward, 
5  Wend.  501  ;  Norris  v.  Crummie,  2  Rand. 
328  ;  Hunter's  Admr.  v.  Jelt,  4  Rand.  104  ; 
McKinney's  Exr.  v.  Waller,  1  Leigh  434; 
Alcock  V.  Hill,  4  Id.  622;  Lenox  v.  Front, 
3  Wheat.  520;  Doe  v.  The  Postmaster- 
General,  1  Peters  318  ;  Locke  v.  The  Post- 
master-General of  the  United  States,  3 
Mason  446  ;  Luke  v.  Leiand  et  al.,  6  Cush. 
259;  Kirby  v.  Studebaker,  15  Ind.  45; 
Hunt  V.  Knox,  34  Miss.  655  ;  Owen  v.  State, 
25  Ind.  107  ;  P.,  F.  W.  &  C.,  Railroad  v. 
Shsoffer,  59  Penn.  St.  350 ;  and  some 
of  the  cases  have  gone  so  far  as  to 
decide,  that  after  a  judgment  has  been 
obtained  by  the  creditor  against  the  prin- 
cipal, and  a  writ  of  execution  placed  in 
the  hands  of  the  sheriff,  a  subsequent  di- 
rection given  to  the  sheriff  not  to  pro- 
ceed, will  not  discharge  the  surety,  un- 
less there  has  been  a  levy  made  on  the 
projjerty  of  the  principal  debtor :  Lennox 
V.  Prout,  3  Wheat.  520  ;  Sawyer  v.  Brad- 
ford, 6  Ala.  572;  The  Farmers'  Bank  of 
Canton  v.  Reynolds,  13  Ohio  84 ;  The 
Union  Bank  of  Tennessee  v.  Govan,  10 
Sm.  &  M.  333  ;  McKenney's  Exrs.  v.  Wal- 
ler, 1  Leigh  434;  Morrisson  v.  Hartman, 
14  Penn.  St.  55  ;  Creath's  Admr.  v.  Sims, 
5  How.  192  ;  but  if  a  levy  has  been  made 
under  the  execution,  a  discontinuance  of 
the  proceedings  by  the  creditor,  will  dis- 
charge the  surety,  because  the  creditor 
will  have  had  it  in  his  power  to  satisfy 
the  debt:  see  Exrs.  of  Riggins  v.  Brown, 
12  Geo.  273;  The  State  Bank  v.  Edwards 
et  al.,  20  Ala.  512  ;  Ferguson  v.  Turner, 
7  Mo.  497 ;  Jones  v.  Bulcock,  3  Bibb 
467;  Lichtenthaler  v.  Thompson,  13  S.  & 
R.  157;  Brown  v.  Kidd,  34  Miss.  291  ; 
Sherraden  i'.  Parker,  24  Iowa  28  ;  and 
other   cases    above   cited;    unreasonable 


delay  in  entering  a  judgment  note,  was 
held  to  discharge  a  guarantor,  where  it 
was  not  shown,  that  the  money  could  not 
have  been  made  by  a  diligent  entry  and 
pursuit  of  the  judgment :  Miller  v.  Beck- 
ley,  27  Penn.  St.  317  ;  and  indulgence  for 
a  definite  period,  and  founded  on  a  new 
consideration,  will  discharge  a  surety, 
for  this  amounts  to  a  change  of  the  origi- 
nal contract:  Clarke  Company  v.  Coving- 
ton, 26  Miss.  470.  Some  of  the  authorities, 
however,  deny  the  position,  that  mere 
inaction  or  delay  on  the  part  of  the  cred- 
itor, will  not  discharge  the  surety,  the 
chief  among  which  seem  to  be,  The  Peo- 
ple V.  Jansen  et  al.,  7  Johns.  332  ;  Penni- 
mann  et  al.  v.  Hudson,  14  Barb.  S.  C. 
579  ;  of  which,  the  first  has  been  over- 
ruled, and  the  last  was  a  case  of  delay  for 
seven  months,  without  explanation,  where 
the  contract  was  "  for  a  due  and  legal 
diligence."  See  on  this  point,  Herrick  v. 
Orange  Company  Bank,  27  Vt.  583  ;  Mc- 
Cune  V.  Belt,  38  Mo.  281  ;  and  Spilman  v. 
Smith,  15  B.  Mon.  123  ;  in  which  last 
case  it  was  held,  that  by  the  statutes  of 
Kentucky,  sureties  on  judgments  are  re- 
leased from  liability,  if  execution  is  de- 
layed to  be  sued  out  for  twelve  months 
after  the  judgment  is  due  ;  but  this  statute 
has  been  held  not  to  apply  to  judicial 
bonds :  Rankin  v.  White,  3  Bush  545. 

It  has  been  said,  that  where  a  valid  con- 
tract is  made  between  the  creditor  and 
principal,  essentially  changing  the  terms  of 
the  original  contract,  the  surety  will  be 
discharged,  because  among  other  con- 
siderations, the  creditor  disables  himself 
from  proceeding  against  the  principal,  at 
the  request  of  the  surety,  and  consequently 
the  surety  is  in  danger  of  losing  his  chance 
of  securing  himself  from  loss;  and  so,  on 
the  other  hand,  if  the  creditor  informs  the 
surety  that  he  will  not  look  to  him  for 
payment,  the  surety  will  be  discharged: 


OF   DEBTS. 


114 


[*115] 


words  of  Lord  Brougham, (/)  the  court  admitted  the  surety's  right,  as 
*against  the  principal  debtor,  to  stand  in  the  shoes  of  the  creditor, 
but  said  there  were  no  shoes  for  him  to  stand  in.  But  by  a  recent 
enactment  every  surety  who  pays  a  debt  is  now  entitled  to  have 
assigned  to  him  every  judgment,  specialty  or  other  security  which 
shall  be  held  by  the  creditor  in  respect  of  such  debt,  whether  such  judg- 
ment, specialty  or  other  security  shall  or  shall  not  be  deemed  at  law  to 
have  been  satisfied  by  the  payment  of  the  debt;  and  such  person  shall 
be  entitled  to  stand  in  the  place  of  the  creditor  and  to  use  all  the  reme- 
dies, and  if  need  be  and  upon  a  proper  indemnity  the  name,  of  the  creditor 
in  any  action  to  obtain  from  the  principal  debtor  indemnification  for  his 
loss  ;  and  the  payment  made  by  the  surety  shall  not  be  pleadable  in  bar 
of  any  action  or  other  proceeding  by  him.(^)     If  there  should  have 

(j)  Hodgson  V.  Shaw,  3  Myl.  &  K.  183,  194. 

(k)  Stat  19  &  20  Vict.  c.  97,  s.  5  ;  Lockhart  v.  Reilley,  1  De  Gex  &  Jones,  464. 


Harris  v.  Brooks,  21  Pick.  195;  Carpenter 
V.  King,  9  Mete.  511  ;  Bank  v.  Kligensmith, 
7  Watts  523  ;  Hogeboom  v.  Herrick,  4  Vt. 
131  ;  Baker  v.  Briggs,  8  Pick.  122  ;  Deyell 
V.  Odell,  3  Hill  215  ;  Foster  v.  Walker,  34 
Miss.  365. 

But  a  mere  naked  agreement  between 
creditor  and  principal,  or  a  promise  made 
to  delay  or  give  time,  or  to  do  any  other 
thing  changing  essentially  the  original 
contract,  if  it  be  unsupported  by  a  valid 
consideration,  will  not  discharge  the 
surety :  Wheeler  et  al.  v.  Washburn,  24 
Vt.  293;  Joslyn  v.  Smith,  13  Id.  353; 
Montgomery  v.  Dillingham,  3  Sm.  &  M. 
647;  Tudor  v.  Goodloe,  1  B.  Mon.  322; 
Blackstone  Bank  v.  Hill,  10  Pick.  129; 
Bailey  v.  Adams,  10  N.  H.  162  ;  Wilson  v. 
The  Bank  of  Orleans,  9  Ala.  847;  The 
O.xford  Bank  v.  Lewis,  8  Pick.  458  ;  The 
Stafford  Bk.  v.  Crosby,  8  Maine  191  ;  Free- 
man's Bk.  V.  Rollins,  13  Maine  202  ;  Crosby 
V.  Wyatt,  23  Id.  156;  Weakley  v.  Bell,  9 
Watts  273;  Barker  w.  McClure,  2  Blackf. 
14;  Parmell  v.  Price,  3  Richard.  121; 
Miller  v.  Stem,  2  Penn.  St.  286  ;  McLemore 
V.  Powel  et  al.,  12  Wheat.  554;  Bk.  of 
United  States  v.  Hatch,  6  Peters  250  ;  Bk. 
of  Utica  V.  Ives,  17  Wend.  501 ;  United 
States  V.  NichoU,  12  Wheat.  505;  United 
States  V.  Kirkpatrick  et  al.,  9  Id.  720; 
Wagman  et  al.  v.  Hoag,  14  Barb.  S.  C.  232 ; 


Cromwell  et  al.,  Admrs.,  v.  Holly  et  al. 
Exrs.,  5  Richard.  47  ;  Draper  v.  Romeyn, 
18  Barb.  163  ;  Grover  i'.  Hoppock,  2  Dutch. 
191;  Adams  V.  Way,  32  Conn.  160;  Calvin 
V.  Wiggam,  27  Ind.  489. 

When  a  judgment  has  been  obtained  by 
the  creditor  against  the  principal,  the  re- 
lations of  principal,  surety,  and  creditor, 
are  not  thereby  altered :  The  Common- 
wealth V.  Miller,  8  S.  &  R.  42  ;  Potts  v. 
Nathans,  1  W.  &  S.  155;  The  Manufac- 
turers' Bk.  V.  The  Bk.  of  Penna.,  7  Id.  335 ; 
Talmage  v.  Burlingame,  9  Penn.  St.  21  ; 
Newell  V.  Price,  4  How.  (Miss.)  684  ;  Cowan 
V.  Colbert,  3  Ga.  239  ;  Carpenter  v.  Devon, 
6  Ala.  710;  The  Commercial  Bk.  v.  The 
Western  Reserve  Bk.,  11  Ohio  444;  La 
Farge  v.  Herter,  3  Denio  157;  s.  c.  1 1  Barb. 
S.  C.  159;  Naylor  v.  Moody,  3  Black.  93; 
Deberry  v.  Adams,  9  Yerg.  52;  Findlay's 
Exrs.  V.  The   Bk.   of  the    United    States, 

2  McL.  44;  Bangs  v.  Strong,  10  Paige  11  ; 
s.  c  7  Hill  250;  Boughton  v.  The  Bk.  of 
Orleans,  2  Barb.  Ch.  458  ;  Storms  v.  Thorn, 

3  Barb.  S.  C.  314;  Hubbell  v.  Carpenter, 
5  Id.  520. 

On  the  subject  of  Discharge  of  Surety, 
see  American  Leading  Cases,  volume 
second,  4th  ed.,  from  page  317  to  page  450, 
where  the  American  authorities  are  col- 
lected. 


115 


OF   CHOSES    IN    ACTION. 


been  more  than  one  surety,  any  one  surety,  paying  the  Avhole  debt,  is 
entitled,  according  to  the  general  principles  of  justice,  to  contribution 
from  his  co-sureties  in  equal  shares,  or  if  they  should  have  been  sureties 
to  unequal  amounts,  then  in  proportion  to  the  respective  amounts  to 
which  they  have  made  themselves  liable.(?)^     And  the  remedies  given  by 

(/)  Decring  v.  Earl  of  Winchelsca,  2  Bos.  &  Pul.  270,  272,  273  ;  Brown  v.  Lee,  6  B.  & 
C.  689  (E.  C.  L.  R.  vol.  13) ;  s.  c.  9  D.  &  R.  701. 


'  Where  two  are  jointly  hound,  and  the 
liahility  of  one  of  the  joint  promisors  is 
subsequently  destroyed,  no  acknowledg- 
ment of  the  claim  by  the  other  will  revive 
the  debt  against  the  one  so  discharged. 
This  is  expressly  decided  in  the  case  of 
Levy  r.  Cadet  et  al.,  17  S.  &  R.  126,  in 
which  the  reason  upon  which  this  princi- 
ple is  founded  is  set  forth  by  Rogers,  J.,  in 
the  following  words :  "  To  expose  persons 
in  such  situations  to  the  risk  of  being 
saddled  with  a  debt  at  an  indefinite 
length  of  time,  which  may  have  been  dis- 
charged, bj'  the  acknowledgment  of  a  per- 
son ignorant  of  the  fact  of  payment,  or 
from  insolvency,  or  perhaps  malice,  reck- 
less of  consequences,  is  a  principle  which 
I  am  unwilling  to  sanction.  Persons  so 
exposed  are  those  whom  the  statute  was 
designed  to  protect."  And  so,  too,  in 
Exeter  Bank  v.  Sullivan  et  al.,  6  N.  H.  136, 
Richardson,  C.  J.,  remarks  :  "  Tt  seems  to 
be  now  become  the  general  opinion,  that 
an  acknowledgment  of  a  debt  that  will 
warrant  the  finding  of  a  new  promise, 
must  be  an  unqualified  and  direct  admis- 
sion of  a  present  subsisting  debt,  which 
the  party  is  liable  and  willing  to  pay.  If 
the  debt  be  admitted,  but  the  debtor  at 
the  same  time  refuses  to  pay,  no  promise 
can  be  raised  by  implication.  The  ac- 
knowledgment, or  new  promise,  is  not 
deemed  to  be  a  continuance  of  the  original 
promise,  but  a  new  contract,  supported  by 
the  original  consideration,  or  evidence  of 
such  contract.  This  view  of  the  operation 
of  the  acknowledgment  of  a  debt  is  be- 
lieved to  be  conformable  to  the  general 
current  of  the  English  as  well  as  of  the 
American  decisions,  and  has  been  ex- 
plained and  enforced  by  Mr.  J.  Story  in  a 
most  able  and  satisfactory  manner:   1  Pe- 


ters 3.51.  If,  then,  the  admission  of  a 
debt  does  not,  of  itself,  take  the  case  out 
of  the  statute,  but  is  only  evidence  of  a 
promise  which  may  have  that  effect,  the 
principle,  that  an  acknowledgment  by  one 
joint  debtor  will  take  a  case  out  of  the 
statute  as  to  another,  falls  to  the  ground. 
There  is  nothing  left  to  support  it.  For, 
although  one  joint  debtor  may  admit  the 
fact  of  the  existence  of  the  debt,  which 
admission  will  be  evidence  of  that  fact 
against  another  joint  debtor,  still  it  by  no 
means  follows  that  by  such  admissions  he 
can  raise  a  new  promise,  that  will  bind 
another  joint  debtor.  It  is  not  pretended 
that  one  can  make  a  new  contract  in  such 
a  case  that  will  bind  the  other." 

The  same  doctrine  is  applicable  to  prin- 
cipal and  surety,  who,  in  the  eye  of  the 
law,  are  regarded  as  joint  promisors, 
although  the  liability  of  the  surety  may 
be  of  a  secondary  nature  ;  and  hence,  in 
Boyd,  Exr.,  v.  Grant  et  al.,  Exrs.,  13  S.  & 
R.  124  (which  was  the  case  of  an  acknow- 
ledgment made  by  the  executor  of  a 
surety,  which  was  not  regarded  as  suffi- 
ciently clear  to  take  the  case  out  of  the 
statute),  Tilghman,  C.  J.,  says:  "It  is  a 
circumstance  of  some  weight  that  George 
Grant  was  but  an  executor  of  his  father, 
who  was  surety  for  Martin,  and  therefore 
could  not  be  supposed  to  have  the  same 
knowledge  of  the  bonds  being  paid  or  not, 
as  if  it  had  been  his  own  debt.  If  payment 
had  been  made,  it  would  probably  have 
teen  by  Martin,  the  principal  debtor." 
And  see  further,  on  this  subject,  Farnum 
V,  Eastwick,  2  Am.  L.  Reg.  572,  overruling 
Zents's  Exrs.  v.  Heart,  8  Penn.  St.  341  ;  in 
which  last-mentioned  case  it  was  decided 
that  if  the  liability  of  one  joint  promisor, 
between  whom   the  relation   of  principal 


OF   DEBTS.  115 

the  act  above  mentioned  are  extended  to  co-sureties :  provided  that  no 
co-surety  shall  be  entitled  to  recover  from  any  other  co-surety,  by  the 
means  aforesaid,  more  than  the  just  proportion  to  which,  as  between  those 
parties  themselves,  such  last-mentioned  person  shall  be  justly  liable.(m) 
In  eqaity,  if  any  surety  has  become  insolvent,  the  others  must  contribute 
rateably  to  the  payment  of  the  whole  deht.{n)  But  if  the  surety  has 
paid  no  more  than  his  own  proportion  of  the  debt  he  cannot  *obtain  p^-.  h  p.-, 
contribution  from  any  of  the  others  ;(o)  nor  will  contribution  be 
allowed  when  the  suretyship  of  one  person  is  a  distinct  transaction  from 
that  of  the  others.(p)  A  surety,  however,  may  be  discharged  from  his 
liability  by  the  conduct  of  the  creditor.  As  surety  he  has  made  himself 
liable  only  for  the  payment  of  a  particular  debt  at  a  given  time,  or  under 
certain  given  circumstances.  If  therefore  the  creditor,  by  any  sub- 
sequent arrangement  with  the  principal  debtor,  preclude  himself  from 
demanding  payment  of  his  debt  at  the  time  or  under  the  circumstances 
originally  agreed  on,  the  surety  will  be  at  once  discharged  from  all  lia- 
bility.(r/)  Thus  if  the  creditor  bind  himself  to  give  further  time  for  pay- 
ment to  the  principal  debtor, (r)  or  compound  with  him,  without  expressly 
reserving  his  remedy  against  the  surety,(s)  the  surety  will  be  discharged. 

(m)  Stat.  19  &  20  Vict.  c.  9V,  s.  5. 

(n)  Peter  v.  Rich,  1  Ch.  Rep.  34;  Hitchman  v.  Stewart,  3  Drew.  271. 

(o)  Ex  parte  GifFord,  6  Ves.  807;  Davis  v.  Humphreys,  6  M.  &  W.  153,  168,  169. 

(p)  Coope  V.  Twyman,  T.  &  Russ.  426  ;  Craythorne  v.  Swinburne,  14  Ves.  160  ;  Pen- 
dlebury  v.  Walker,  4  You.  &  Col.  424. 

(q)  Calvert  v.  London  Dock  Company,  2  Keen  638  ;  Heath  v.  Key,  1  You.  &  Jer. 
434  ;  Nicholson  v.  Revill,  4  Ad.  &  E.  675,  683  (E.  C.  L.  R.  vol.  31)  ;  Blake  v.  White,  1 
You.  &  Col.  420  ;  Bowser  v.  Cox,  4  Beav.  879  ;  6  Beav.  110  ;  and  see  Squire  v.  Whitton, 
I  H.  of  L.  C.  333. 

(r)  Samuel  v.  Howarth,  3  Meriv.  272  ;  Eyre  v.  Bartrop,  3  Madd.  221  ;  Moss  v.  Hail,  5 
Ex.  Rep.  46;  Davis  v.  Stainbank,  6  De  Gex,  M.  &  G.  679  ;  Bailey  v.  Edwards,  4  B.  &  S. 
761  ''E.  C.  L.  R.  vol.  116). 

(«)  Ex  parte  Gifford,  6  Ves.  807  ;  Ex  parte  Carstairs,  Buck  560 ;  Maltby  v.  Carsstairs, 
7  B.  &  C.  737  (E.  C.  L.  R.  vol.  14)  ;  s.  c.  1  M.  &  R.  549  ;  Thompson  v.  Lack,  3  C.  B.  540 
(E.  C.  L.  R.  vol.  54)  ;  Owen  v.  Homan,  4  H.  of  L.  Cases  997  ;  Close  v.  Close,  4  De  Gex, 
M.  &  G.  176  ;  Webb  v.  Hewitt,  3  Kay  &  John.  438  ;  Boaler  v.  Mayor,  19  C.  B.  N.  S.  76 
(E.  C.  L.  R.  vol.  115). 

and  surety  subsists,  has  been  destroyed,  233  ;  Commonwealth  v.  Cox's  Admrs.,  36 

an  acknowledgment  by  the  other  will  re-  Id.  442  ;  Steele   v.   Mealing,   24   Ala.  284  ; 

vive    it;    and    see    Watts    v.    Deavor,    1  Cutler  v.  Emery,  37  N.  H.  567;  Miller  v. 

Grant's    Cases    267;     Carlton    v.    Ludlow  Sawyer,  30  Vt.  412  ;  Kelly  r.  Page,  7  Gray 

Woollen  Mill,  27  Vt.  496;  Barger  v.  Dur-  213;    Paulin    v.    Kaighn,    3    Dutch.    503 

vin,  22  Barb.  68.  Leary  v.  Cheshire,  3  Jones  Eq.  170;  Pau- 

That  the  law  of  contribution    between  lin   v.   Kaighn,   5    Dutch.  480  ;  Spiller   v. 

joint  sureties  is  the  same  as  that  stated  in  Creditors,   16  La.  Ann.  292  ;  Armitage  v. 

the  text,  see  the  following  American  au-  Pulver,  37  N.  Y.  494. 
thorities :  Stickel  v.  Stickel,  28  Penn.  St. 


116  or    CIIOSES    IN   ACTION. 

But  tlio  acceptance  by  the  creditor  from  the  principal  debtor  of  a  new 
and  independent  security  for  the  debt  will  not  discharge  the  surety. (i) 
Neither  will  the  surety  be  discharged  by  the  mere  neglect  of  the  creditor 
to  enforce  payment  of  the  debt  from  the  principal  debtor  at  the  time  of 
r*i  1 71  ^^^  becoming  due  ;{u)  nor  by  the  creditor's  *express  agreement  to 
give  time  to  the  principal  debtor,  if  such  agreement  fail  in  any 
of  the  requisites  of  a  binding  contract,(x) 

We  now  approach  the  subject  of  the  alienation  of  debts,  to  which  some 
reference  has  already  been  made.  We  have  seen  that  a  debt  was 
anciently  considered  as  a  mere  right  to  bring  an  action  against  the 
debtor,  and  as  such  was  incapable  of  being  transferred. (?/)  In  process 
of  time,  however,  an  assignment  of  a  debt  was  permitted  to  take  place  by 
means  of  an  authority  from  the  creditor  to  his  assignee  to  sue  the  debtor 
in  the  creditor's  name.  This  authority  is  usually  called  a  potver  of 
attorney,  which  need  not  be  by  deed,  but  may  be  by  writing  unsealed,(2)  or 
even  by  parol  ;(a)  and  when  a  debt  is  a  legal  debt,  recoverable  only  in  a 
court  of  law,  it  cannot  be  effectually  assigned  without  such  a  power.  The 
assignment  of  debts  by  means  of  powers  of  attorney  is  now  recognised 
and  protected  by  the  courts  of  law.^     Thus  in  a  case  where  the  original 

(<)  Bell  V.  Banks,  3.  M.  &  G.  258  (E.  C.  L.  R.  vol.  42). 
(m)  Eyre  v.  Everett,  2  Russ.  381  ;  Peel  v.  Tatlock,  1  B.  &  P.  419. 

(z)  Philpot  V.  Briant,  4  Bing.  717  (E.  C.  L.  R.  vol.  13)  ;  Tucker  v.  Laing,  2  Kay  & 
John.  745. 

{y)  Ante,  p.  4.  [z)  Howell  v.  M'lvers,  4  Term  Rep.  690. 

(a)  Heath  v.  Hall,  4  Taunt.  326. 

1  But  that  such  a  power  will  not  be  ef-  the  interest  of  the  intestate  in  them  offered 
fectual,  in  case  of  the  death  of  the  grantor  for  sale,  the  defendant's  creditors  forbade 
of  the  power,  see  Hunt  v.  Rousmanier,  8  the  sale,  and  this  bill  was  brought  to  corn- 
Wheat.  174,  and  1  Peters  S.  C.  1.  The  de-  pel  them  to  join.  There  was  some  evi- 
fendant,  Rousmanier,  executed  to  the  dence  that  the  power  had  been  given  in 
plaintiff  a  power  of  attorney,  authorizing  place  of  a  mortgage.  At  the  first  decision 
him  to  make  and  execute  a  bill  of  sale  of  of  this  case.  Chief  Justice  Marshall,  re- 
three-fourths  of  the  vessels,  Nereus  and  In-  marks,  "The  general  rule  ...  is, 
dustry,  to  himself  or  to  any  other  person,  that  a  letter  of  attorney  may,  at  any  time 
andinthecventoftheirbeinglost,to'Collect  be  revoked  by  the  party  who  makes  it; 
the  money  which  should  become  due,  and  is  revoked  by  his  death.  But  this  ' 
under  a  policy  upon  them,  and  their  general  rule,  which  results  from  the  na- 
freight;  and  in  the  power  of  attorney  it  ture  of  the  act,  has  sustained  some  modi- 
was  recited,  that  it  was  given  as  collat-  fication.  Where  a  letter  of  attorney  forms 
eral  security  for  the  payment  of  certain  a  part  of  a  contract,  and  is  a  security  for 
notes,  and  was  to  be  void  on  their  pay-  money,  or  for  the  performance  of  any  act 
ment;  subsequently,  Rousmanier  died,  and  which  is  deemed  valuable,  it  is  generally 
on  the  return  of  the  vessels,  they  being  made  irrevocable  in  terms,  or  if  not  so,  is 
taken  possession  of  by  the  plaintiff,  and  deemed  irrevocable  in  law.     .     .     Rous- 


OF   DEBTS.  117 

creditor  became  bankrupt  after  he  had  assigned  his  debt,  it  was  held 
that  an  action  against  the  debtor  might  still  be  properly  brought  in  the 
name  of  such  original  creditor,  by  virtue  of  the  power  of  attorney  which 
he  had  given  to  his  assignee  :  although,  if  no  assignment  had  been  made, 
the  assignees  of  the  creditor  under  the  bankruptcy  would  have  been  the 
proper  parties  to  sue.(5)  So  if  a  power  of  attorney  be  given  on  an 
assignment  of  a  debt  for  a  valuable  consideration,  it  is  held  to  be  irrevo- 
cable by  the  assignor. (c?)  When  a  debt  or  demand  is  equitnhle  only, 
that  is  of  a  nature  to  be  recoverable  only  in  the  Court  of  Chancery, 
*it  may  be  assigned  without  a  power  of  attorney  ;  for  equity  will  r^^  ^  q-, 
allow  the  assignee  to  sue  in  his  own  name.  The  same  privilege 
has  recently  been  extended  by  Parliament  to  moneys  secured  by  policies 
of  assurance  of  lives, (t?)  and  also  to  policies  of  marine  assurance  ;{e)  and 
it  is  to  be  hoped  that  it  may  one  day  be  extended  to  every  other  legal 
debt.  When  a  debt  is  assigned,  the  title  of  the  assignee  is  not  complete 
until  he  has  given  to  the  debtor  notice  of  the  assignment  ;(/)  for  the 
debtor,  if  he  has  had  no  notice  of  the  assignment,  may  lawfully  pay  his 
debt  to  the  original  creditor,  and  will  be  effectually  discharged  by  his 
receipt. 

Bills  of  exchange  and  promissory   notes  are,  as  we  have    already 

(6)  Winch  v.  Keeley,  1  Term  Rep.  619  ;  Parnham  v.  Hirst,  8  M.  &  W.  743.     See  De 
Pothonier  v.  De  Mattos,  1  E.  B.  &  E.  461  (E.  C.  L.  R.  vol.  96). 

(c)  Walsh  V.  Whitcomb,  2  Esp.  565.  (d)  Stat.  30  &  31  Vict.  c.  144. 

(e)  Stat  31  &  32  Vict.  c.  86.  (/)  See  j^os/,  the  chapter  on  Title. 

manier,   therefore,   could   not,  during  his  vives  the    person    giving  it,  and  may  be 

life,  by  any  act  of  his  own,  have  revoked  executed  after  his  death.      ...     It  is, 

this  letter  of  attorney.     But  does  it  retain  .     .     .     deemed  perfectly  clear,  that   the 

its  efficacy  after  his  death  ?     We  think  it  power    given    in    this    case,    is    a    naked 

does  not.     We  think  it  well  settled,  that  power,    not    coupled    with    an    interest, 

a  power  of  attorney,  though   irrevocable  which,  though  irrevocable  by  Rousmanier 

during  the  life  of  the  party,  becomes  ex-  himself,  expired  on  his  death." 
tinct  by  his  death.     .     .     .     This  general         And  in   the    same  case,    reported   in    1 

doctrine,  that  a  power  must  be  executed  Peters  S.  C.  1,  upon  the  question  whether 

in  the  name  of  a  person  who  gives  it,  a  equity  would  grant  relief,  it  was  decided 

doctrine   founded    on    the    nature    of  the  it  would  not.  Judge  Washington  delivering 

transaction,  is  most  usually  ingrafted  in  the  opinion  of  the  court.     See  also  on  this 

the  power  itself.      Its  usual  language  is,  subject,  Michigan  Insurance  Co.  v.  Leven- 

that  the  substitute  shall  do  that  which  he  worth,  30    Vt.    11  ;    Saltmarsh    v.    Smith, 

is    empowered    to    do,  in   the   name  of  his  32  Ala.  404;  Hartshorn  v.   Day,  19   How. 

principal.     .     .     .     This  general  rule,  that  U.  S.  211  ;  MacGregor  v.  Gardner,  14  Iowa 

a  power  ceases  with  the  life  of  the  person  326 ;  Blackstone  v.   Buttermore,  53  Penn. 

giving  it,  admits  of  one  exception.     If  a  St.  266  ;  Barr  v.  Schroeder,  30  Cal.  609. 
power  be  coupled  with  an  interest,  it  sur- 


118 


OF    CIIOSES    IN    ACTION. 


seen,(^)  exceptions  to  the  rule  which  requires  a  power  of  attorney  to 
enable  the  assignee  to  sue  the  debtor  for  the  debt  assigned.  The  cus- 
tom of  merchants  was  in  ancient  times  sufficiently  powerful  to  counter- 
vail in  this  respect  the  strictness  of  the  common  law,  and  the  holder  of 
a  bill  of  exchange  was  able  to  sue  upon  it  in  his  own  name.  By  a 
statute  of  Anne,(/0  promissory  notes  were  made  assignable  or  endorsable 
over  in  the  same  manner  as  inland  bills  of  exchange  might  be  according 
to  the  custom  of  merchants. 

Debts,  beinff  formerly  considered  as  mere  rights  of  action,  could  not 
be  taken  in  execution  on  a  judgment  obtained  against  the  creditor.  But 
when  they  are  secured  by  some  check,  bill,  note,  bond,  specialty  or 
r*iiOl  other  security,(i)  the  act  for  extending  the  remedies  of  creditors 
^  against  the  property  of  debtors(A;)  provides   *that  under  the 

writ  of  fieri  facias  (l)  the  sheriff  may  seize  not  only  money  and  bank 
notes,  but  also  the  securities  above  mentioned,  and  may  sue  upon  them 
in  his  own  name  on  the  arrival  of  the  time  of  payment ;  but  the  sheriff 
is  not  bound  to  sue,  unless  indemnified  in  the  manner  prescribed  by  the 
acts  from  the  costs  of  the  action.^     And  the  Common  Law  Procedure 

{ff)  Ante,  p.  4. 

{h)  Stat.  3  &  4  Anne,  c.  9,  made  perpetual  by  stat.  7  Anne,  c.  25. 
(t)  Harrison  v.  Paynter,  G  M.  &  W.  387  ;  Wood  v.  Wood,  4  Q.  B.  397   (E.  C.  L.  R, 
vol.  45). 

(k)  Stat.  I  &  2  Vict.  c.  110,  s.  12.  (/)  See  ante,  p.  51. 


1  In  the  United  States,  this  subject  is 
regulated  by  the  legislative  provisions  of 
the  several  States.  And  not  only  may  a 
debt  due  to  a  defendant,  be  taken  in  satis- 
faction of  his  debt  to  the  plaintiff,  by  an 
attachment  in  the  nature  of  an  execution  ; 
but  a  debt  may  also  be  attached,  by  pro- 
cess of  foreign  attachment,  as  a  means  of 
compelling  an  appearance  on  the  part  of  a 
non-resident  defendant,  or  by  domestic 
attachment,  which  is  of  the  general  nature 
of  a  proceeding  in  bankruptcy.  An  at- 
tachment anterior  to  judgment  may  also 
be  issued  in  some  cases  of  fraudulent  con- 
tract, or  fraudulent  disposition  of  the  ef- 
fects of  the  debtor.  On  the  subjects,  of 
foreign  attachment,  domestic  attachment, 
or  attachment  in  the  nature  of  execution, 
see  the  following  cases  :  Bostwick  et  al.  v. 
Beach,  18  Ala.  80  ;  Lawrence  v.  Sturdi- 
vent,  5  Eng.  130;  The  Stamford  Bank  v. 


Ferris,  17  Conn.  259  ;  Davenport  v.  Lacon, 
Id.  278  ;  Fitch  v.  Waite,  5  Id.  117  ;  Grosve- 
nor  V.  The  Farmers'  and  Mechanics'  Bank, 
13  Id.  107  ;  Insurance  Co.  v.  Weeks  et  al., 
7  Mass.  438  ;  Perry  v.  Coates  et  al.,  9  Id. 
537  ;  Andrews  v.  Ludlow  et  al.,  5  Pick.  28  ; 
Lupton  V.  Cutler  et  al.,  8  Id.  298  ;  Jackson 
V.  Willard,  4  Johns.  40  ;  Denton  et  al.  v. 
Livingston  et  al.,  9  Id.  96  ;  Hardy  v.  Dob- 
bin, 12  Id.  220  ;  Mann  v.  The  Exrs.  of  Mann, 
1  Johns.  Ch.  231  ;  Spencer  v.  Blaisdell,  4 
N.  H.  196 ;  Insurance  Co.  v.  Piatt,  5  Id.  193  ; 
Rundlett  v.  Jordan,  3  Greenl.  47  ;  Belcher 
V.  Grubb,  4  Harring.  461  ;  Willis  &  Co.  v. 
Parsons  &  Co.,  13  Geo.  339  ;  Hodson  et  al. 
V.  McConnel,  12  111.  172  ;  Reinhard  v. 
Keith,  3  Ind.  137  ;  Burgess  v.  Clark,  Id. 
250;  Wilson  v.  Albright,  2  Iowa  125; 
Harlan  v.  Moriarty,  Id.  486;  Cornett  v. 
Doolittle,  Id.  385  ;  Weather  v.  Mudd,  12 
B.  Mon.  112;   Woodruff  &  Co.  v.  French 


OF    DEBTS.  119 

Act,  1854,  now  enables  the  court  or  a  judge  to  order  the  examination 
of  any  judgment  debtor  as  to  any  and  what  debts  are  owing  to  him  ;(w) 
and  a  judge  may,  on  the  application  of  the  judgment  creditor,  either 
before  or  after  such  examination,  order  that  all  debts  owing  from  any 
third  person  (in  the  act  called  the  garnishee)  to  the  judgment  debtor 
shall  be  attached  to  answer  the  judgment  debt.(w)  And  payment  made 
by  the  garnishee,  or  execution  levied  upon  him  under  the  provisions  of 
the  act,  for  the  amount  of  his  debt,  is  a  valid  discharge  to  him  as  against 
the  judgment  debtor  to  the  amount  paid  or  levied,  although  such 
proceedings  may  be  set  aside,  or  the  judgment  reversed. (o)  And  the 
Common  Law  Procedure  Act,  1860,  further  provides  that  if  it  be 
suggested  by  the  garnishee  that  the  debt  sought  to  be  attached  belongs 
to  some  third  person  who  has  a  lien  or  charge  upon  it,  the  judge  may 
order  such  third  person  to  appear  before  him,  and  may  order  execution 
to  issue  to  levy  the  amount  due  from  such  garnishee,  or  the  judgment 
creditor  to  proceed  against  the  garnishee ;  and  he  may  bar  the  claim  of 
such  third  person,  or  make  such  other  order  as  he  shall  think  just.(j^) 

In  the  event  of  bankruptcy,  the  assignees  of  the  bankrupt  were 
empowered  to  sue  for  debts  owing  to  him  *in  their  own  names  r:):-|om 
for  the  benefit  of  his  creditors. ((y)     And  now  by  the  Bankruptcy 

(m)   Stat.  17  &  18  Vict.  c.  125,  s.  60.  (n)  Ibid.  s.  61. 

(o)  Stat.  17  &  18  Vict.  c.  125,  s.  65.  See  Holmes  v.  Tutton,  5  E.  &  B.  65  (E.  C.  L.  R. 
vol.  85). 

(p)  Stat.  23  &  24  Vict.  c.  126,  ss.  28-31. 

(q)  Stat  12  &  13  Vict.  c.  106,  s.  141,  repealing  stats.  6  Geo.  IV.  c.  16,  s.  63,  and  1  & 
2  Will.  IV.  c.  56,  s.  25  ;  and  now  repealed  by  stat.  32  &  33  Vict.  c.  83.  And  see  stat. 
15  &  16  Vict.  €.  76,  s.  142,  as  to  the  bankruptcy  of  a  plaintiff  in  an  action  at  law. 

&  Co.  et  al.,  6  La.  62  ;  Estell  v.  Goodloe,  •   412  ;  Nichols  v.  Schofield,  2  R.  I.  123  ;  Ar- 
id.   122;    Bird    v.    Cain    et   al.,    Id.    248;  nold  v.  Frazier,  5  Strobh.  33 ;   Lindau  v. 
Walker    v.    Curvey,    Id.    535  ;     Slatter   v.  Arnold,  4  Id.  290  ;  Kincaid  v.  Neall,  3  Mc- 
Tiernan  &  Co.,  Id.  567  ;   Lumbden  v.  Bou-  Cord  201 ;  Wiggins  v.  Anderson,  1   Texas 
rie,  2  Md.  324  ;   Barr,  Garnishee,  v.  Perry,  73  ;  Merritt  et  al.  v.  Clow,  2  Id.  582  ;  Davis 
3Gill313;  Webb  «;.  Miller  et  al.,  24  Miss.  etal.  y.  Clayton  etal.,  5  Humph.  446;  Nolen 
638;  Ridley  v.  Ridley,  Id.  648;  Gallis  v.  v.  Crook,  5  Id.  312  ;  Hogshead  v.  Carruth, 
Kirby,  13  Mo.  157  ;  Wood  v.  Edgar,  Id.  451 ;  5  Yerg.  227  ;   Gibbs  et  al.  v.  Bourland,  6 
Temple  v.  Cochran,  Id.   116  ;    Hanness  v.  Id.  481  ;  The  Brandon  Iron  Co.  v.  Cleason, 
Bonnell,  3  Zabr.  159 ;  Castner  v.  Styer  et  24  Vt.  228  ;    Goodrich  v.  Church,  20  Id. 
al..  Id.  236  ;  Bracken  v.  Ballentine,  1  Har-  187  ;  Carrington  et  al.  v.  Didier  et  al.,  8 
rison  484  ;  Anderson  v.  Douk,  10  Ired.  295  ;  Gratt.  260  ;  Schofield  v.  Cox  et  al..  Id.  533 
Arrington  v.  Screws,  9  Id.  42 ;    Myers  v.  McCheury   &    Co.   v.   Jackson,   6    Id.    96 
Beeman,  Id.  116;  Weaver  v.  Russel  et  al.,  Memphis  Railroad  Co.  v.  Wilcox,  48  Penn 
18  Ohio  497  ;  Lessee  of  Cochran's  Heirs  v.  St.   161;    Coe   v.  Wilson,   46    Maine   314 
Loring,   17    Id.  409;    Full-er  v.  Bryan,  20  Cooper  v.  Reynolds,   10  Wall.  U.  S.  308 
Penn.  St.  144  ;  Sheetz  v.  Hobensack,  Id.  Livermore  v.  Rhodes,  3  Rob.  (N.  Y.)  626. 


120 


OF    CIIOSES    IN   ACTION. 


Act,  1809, (r)  a  trustee  of  a  bankrupt  may  sue  and  be  sued  by  the  ofRcial 
name  of  "  The  trustee  of  the  property  of  A.  B.,  a  bankrupt."  And  any 
person,  to  whona  anything  in  action  belonging  to  the  bankrupt  is  assigned 
in  pursuance  of  that  act,  may  bring  or  defend  any  action  or  suit  relating 
to  such  thing  in  action  in  his  own  name.(s) 

We  have  now  to  consider  the  payment  of  debts.  And,  in  the  first 
place,  the  payment  of  a  smaller  sum  is  no  satisfaction  of  a  larger  one, 
unless  there  be  some  consideration  for  the  relinquishment  of  the  residue,(«) 
such  as  the  payment  at  an  earlier  time  than  the  whole  is  due,(M)  or  the 
concurrence  of  some  (a:)  or  all  of  the  other  creditors  of  the  debtor  in 
accepting  a  composition. (?/)^     But  it  seems  that  the  acceptance  of  a 

(r)  Stat.  32  &  33  Vict.  c.  71,  ss.  22,  83,  par.  (7). 
(s)  Sect.  111. 

(t)  Cumber  v.  Wane,  1  Strange  425;  s.  c.  1  Smith's  Leading  Cases  146;  Fitch  v. 
Sutton,  5  East  230. 
(u)  Co.  Litt.  212  b. 

(z)  Norman  v.  Thompson,  4  Ex.  Rep.  755. 
(y)   Reay  v.  Richardson,  2  C,  M.  &  R.  422  ;  Pfleger  v.  Browne,  28  Beav.  391. 


1  It  is  a  technical  rule  of  law,  that  the 
giving  of  a  less  sum  of  money  for  a  debt  of 
greater  amount,  cannot  operate  in  satisfac- 
tion or  extinguishment  of  the  debt :  Deie- 
rick  V.  Leaman  et  al.,  9  Johns.  333; 
Harrison  v.  Wilcox  et  al.,  2  Id.  448  ;  John' 
son  V.  Brunnan,  5  Id.  268  ;  Seymour  v. 
Minturn,  17  Id.  169;  Latapee  v.  Pecholier, 
2  Wash.  C.  C.  180;  White  v.  Jordan,  27 
Maine  370  ;  Warren  v.  Skinner,  20  Conn. 
559  ;  Eve  v.  Moseley,  2  Strobh.  203  ;  Gur- 
ley  V.  Ililtshue,  5  Gill  218;  Spruneberger 
r.  Dentlee,  4  Watts  126;  Kellogg  et  al.  v. 
Dumont  et  al.,  14  Wend.  116;  Brooks  et 
al.  I'.  White,  2  Mete.  283  ;  Molyneaux  et  al. 
V.  Collier,  13  Geo.  407  ;  Booth  v.  Campbell, 
15  Md.  569  ;  Sullivan  v.  Finn,  4  Greene 
(Iowa)  544;  Harriman  v.  Harriman,  12 
Gray  341  ;  Bunge  v.  Koop,  5  Rob.  (N.  Y. 
1  ;  and  so,  a  note  for  a  less  sum  cannot  be 
said  to  extinguish  one  of  greater  value  : 
Canfield  v.  Ives,  18  Pick.  253  ;  Smith  v. 
Bartholomew,  1  Mete.  276.  But,  the  de- 
livery and  acceptance  of  some  collateral 
thing  in  satisfaction  of  a  debt,  will  be  con- 
strued a  valid  payment ;  as  the  delivery 
and  acceptance  of  commodities :  Jones  v. 


Bullett,  2  Litt.  49  ;  or,  of  the  promissory 
note  of  a  third  person  :  Booth  v.  Smith,  3 
Wend.  66  ;  N.  Y.  State  Bank  v.  Fletcher,  5 
Id.  85  ;  Bullen  et  al.  v.  McGillicuddy,  2 
Dana  90;  Pope  v.  Tunstall  et  al.,  3  Ark. 
209 ;  James  et  al.  v.  Hackley  et  al.,  16 
Johns.  273  ;  Brown  v.  Jackson,  2  Wash.  C. 
C.  24 ;  Tobey  v.  Barber,  5  Johns.  68  ;  John- 
son V.  Weed  et  al.,  9  Id.  310;  Roget  v. 
Merritt  et  al.,  2  Caines  117;  Van  Epps  v. 
Dilleye,  6  Barb.  S.  C.  245  ;  Hays  v.  Stone, 
7  Hill  128;  Maze  v.  Miller,  1  Wash.  C.  C. 
328;  Harris  et  al.  v.  Lindsay,  4  Id  271; 
Peter  v.  Beverley,  10  Peters  534;  Glenn  v. 
Smith,  2  Gill  &  Johns.  494;  Gordon  v. 
Price,  10  Ired.  385  ;  Perit  et  al.  v.  Pitfields 
et  al.,  5  Rawle  166  ;  McGuirn  v.  Holmes,  2 
Watts  121  ;  McLaughlin  v.  Bovard,  4  Id. 
308  ;  Moore  v.  Briggs,  15  Ala.  24  ;  Fulford 
V.  Johnston  et  al.,  Id.  386  ;  Frisbie  et  al.  v. 
Larned  et  al  ,  21  Wend.  451  ;  Heidenheimer 
V.  Lyon,  3  E.  D.  Smith  54  ;  or  a  mortgage  : 
Keelert;.  Salisbury,  33  N.  Y.  648  ;  and  so,  of 
services  rendered  by  the  debtor,  or  real  or 
personal  property  transferred  to  the  cred- 
itor, or  almost  anything  which  the  creditor 
shall  agree  to  receive  in  satisfaction  :  Blinn 


OF   DEBTS. 


120 


negotiable  seciLrity  for  a  small  amount  may  be  a  good  satisfaction  for  a 
larger  debt  ',{z)   and  the  payment  of  a  small  sum  may  be  a  good  satisfac- 


(z)  Sibree  v.  Tripp,  15  M.  &  W.  23. 


V.  Chester,  5  Day  359  ;  Watkinsonw.  Ingleby 
et  al.,  5  Johns.  386  ;  Eaton  v.  Lincoln,  13 
Mass.  424  ;  Musgrovcu.  Gibbs,  1  Dall.  216  ; 
Smith  V.  Brown,  3  Hawks.  580  ;  Brooks  et 
al.  V.  White,  2  Mete.  283  ;  Austin  v.  Dor- 
win,  21  Vt.  39  ;  Spann  v.  Blatzell,  2  Fla. 
302  ;  Milliken  et  al.  v.  Brown,  1  Rawle 
391;  Williams  v.  Phelps,  16  Wis.  80; 
Pepper  v.  Aiken,  2  Bush.  (Ky.)  251  ;  and 
an  arrest  of  a  debtor  is  regarded  as  pay- 
ment and  satisfaction  of  the  debt:  Mag- 
niac  V.  Thompson,  2  Am.  L.  Reg.  697. 

So  upon  the  principle  of  an  accord  and 
satisfaction,  where  an  agreement  is  made 
between  the  parties,  whereby  some  ad-  • 
vantage  accrues  to  the  creditor,  or  detri- 
ment to  the  debtor,  other  than  what 
springs  out  of  the  original  contract,  a  less 
sum  may  be  received  in  satisfaction  of  a 
greater :  Milliken  et  al.  v.  Brown,  1  Rawle 
391  ;  Molyneau.x  et  al.  v.  Collier,  13  Ga. 
407;  Henderson  v.  Moore,  5  Cranch  11; 
Rose  V.  Hall,  26  Conn.  392;  Jones  v. 
Perkins,  29  Miss.  129;  Fenwick  v.  Phillips, 
3  Mete.  (Ky.)  87;  or,  a  note  for  a  less 
sum,  extinguish  a  debt  of  greater  amount : 
Brooks  et  al.  v.  White,  2  Mete.  283  ;  Boyd 
et  al.  V  Hitchcock,  20  Johns.  76  ;  Le  Page 
V.  McCrea,  1  Wend.  104  ;  Kellogg  et  al.  v. 
Dumont  et  al.,  14  Id.  116  ;  Sanders  v.  The 
Branch  Bank,  13  Ala.  353  ;  Webb  v.  Gold- 
smith, 2  Duer416;  and  hence  it  follows, 
that  an  agreement  for  the  payment  of  a 
sum  certain,  instead  of  a  larger  and  un- 
liquidated claim,  will  cancel  the  indebted- 
ness :  McDaniels  v.  Lapham  et  al.,  21  Vt. 
223  ;  Lamb  v.  Goodwin,  10  Ired.  320  ;  and 
the  acceptanceof  the  noteof  one  of  thepart- 
ners  of  a  firm,  for  the  debt  of  a  firm,  is  valid 
as  an  accord  and  satisfaction :  Sheeby  v. 
Mandeville  et  al.,  6  Cranch  253  ;  Estate  of 
Davis  V.  Desauque,  5  Whart.  531  ;  Muldon  v. 
Whitlock,  1  Cowen290;  Parker  i>.  Cousins,  2 
Gratt.  373  ;  Mason  v.  Wickersham,  4  W.  &  S. 
100;  Arnold  v.  Camp,  12  Johns.  409; 
James  v.  Hackley,  16  Id.  273  ;  Harris  et  al. 


V.  Lindsay,  4  Wash.  C.  C.  271  ;  Wildes  et 
al.  V.  Pessenden  et  al.,  4  Mete.  12  ;  Living- 
ston V.  Radcliff,  6  Barb.  S.  C.  202  ;  Van 
Epps  V.  Dilleye,  Id.  245  ;  Kinster  et  al.  v. 
Pope,  5  Strobh.  126  ;  Benneson  v.  Thayer, 
23  111.  374 ;  Pierce  v.  Pierce,  25  Barb.  243  ; 
Stephens  v.  Thompson,  28  Vt.  77  ;  Powell 
V.  Charless,  34  Misso.  485  ;  Hoskinson  v. 
Eliot,  62  Penn.  St.  393.  But  in  all  cases 
of  accord  and  satisfaction,  the  considera- 
tion therefor,  must  be  either  good  or  valu- 
able :  Keeler  v.  Neal,  4  Watts  424 ;  Davis 
V.  Noaks,  3  J.  J.  Marsh.  494 ;  Common- 
wealth for  the  use,  &c.,  v.  Miller,  5  Mon. 
205  ;  Nave  v.  Fletcher,  4  Litt.  242  ;  Buddi- 
cum  V.  Kirk,  3  Cranch  293. 

An  accord,  however,  without  a  satisfac- 
tion, is  of  no  efficacy,  and  hence  an  agree- 
ment for  an  accord,  will  not  be  binding, 
unless  executed :  Williams  v.  Stanton,  1 
Root  426  ;  Pope  v.  Tunstale  et  al.,  3  Ark. 
209  ;  Linnard  v.  Patterson,  3  Blackf.  354  ; 
Maze  V.  Miller,  1  Wash.  C.  C.  328 ;  Morris 
Canal  v.  Van  Vorst,  1  Zabr.  101 ;  Russell 
V.  Lytle,  6  Wend.  390;  Hawley  v.  Foot,  19 
Id.  516  ;  Brooklyn  Bank  v.  De  Grann  et 
al.,  23  Id.  342  ;  Anderson  v.  The  High- 
land Turnpike  Company,  16  Johns.  86 ; 
Evans  v.  Wells,  22  Wend.  325  ;  Eaton  v. 
Lincoln,  13  Mass.  424  ;  Seamen  v.  Haskins, 
2  Johns.  Cas.  195;  Phillips  v.  Berger,  2 
Barb.  S.  C.  609  ;  Spruneberger  v.  Dentler, 
4  Watts  126  ;  Rising  v.  Patterson.  5  Whart. 
316  ;  Daniels  v.  Hatch  et  al.,  1  Zabr.  391  ; 
Hart  V.  Bailie,  16  S.  &  R.  162;  Weakley  v. 
Bell,  9  Watts  280  ;  Phelps  v.  Johnson,  8 
Johns.  58;  Gregory  v.  Thomas,  2  Wend. 
47  ;  Gallagher's  Exrs.  v.  Roberts,  2  Wash. 
C.  C.  191  ;  Hearn  v.  Kiehl,  38  Penn.  St. 
147;  Hall  t>.  Smith,  15  Iowa  584;  Alay- 
field  V.  Cotton,  21  Texas  1  ;  Kerr  v.  O'Con- 
nor, 63  Penn.  St.  341  ;  but  if,  by  agreement, 
an  executory  obligation  be  entered  into, 
in  lieu  of  payment,  it  will  be  good  if  the 
obligation  is  carried  out :  Kinsler  et  al. 
V.  Pope,  5   Strobh.  126  ;  Spann  v.  Blatzell, 


120 


OF    CnOSES    IN    ACTION. 


tion  for  an  unliquidated  demand  for  large  pecuniary  damages,  on  account 
of  the  uncertainty  of  such  a  claim. (a)     When  a  less  sum  is  paid  to  the 

(a)  Wilkinson  i'.  Byers,  1  Ad.  &  E.  lOG  (E.  C.  L.  R.  vol.  28). 


2  Fla.  302  ;  Morris  Canal  v.  Van  Vorst,  1 
Zabr.  391  ;  Keen  v.  Vaughan,  48  Penn.  St. 
477;  Gushing  V.  Wj-nian,  44  Maine  121; 
Clark  t'.  Bowen,  22  How.  U.  S.  270. 

Upon  the  question  whether  the  debtor's 
own  negotiable  note  can  be  taken  as  an 
accord  and  satisfaction  of  his  debt,  the 
authorities  seem  to  be  conflicting;  in 
New  York,  it  has  been  held,  that  it  cannot 
be  regarded  as  a  satisfaction  of  the  debt, 
even  upon  an  express  agreement  of  the 
parties  :  Putnmn  v.  Lewis,  8  Johns.  389  ; 
Frisbie  v.  Larned,  21  Wend.  450;  Myers 
t>.   Wells,    5   Kill  463;    Cole    v.    Sackett, 

1  Hill  (N.  Y.)  517  ;  but,  in  Pennsylvania, 
Connecticut,  and  New  Hampshire,  the  law 
is  to  the  contrary :  Dougal  v.  Cowles  et 
al.,  5  Day  511  ;  Darlington  v.  Gray,  5 
Whart.  487;  Weakley  v.  Bell  et  al.,  9 
Watts  273;  Hays  v.  Clnrg,  4  Id.  452; 
Jeffrey  v.  Cornish,  10  N.  H.  505  ;  Seltzer 
V.  Coleman,  32  Penn.  St.  493  ;  and  the  law 
is  the  same  in  Alabama :  Pickling  v. 
Brewer,  38  Ala.  685.  With  a  like  clashing 
of  authorities,  some  of  the  cases  hold,  that 
the  debtor's  own  negotiable  note  cannot 
be  regarded  as  payment :  Herring  v.  San- 
ger, 3  Johns.  Cas.  71  ;  Johnson  v.  Weed,  9 
Johns.  310;  Olcott  v.  Rathbone,  5  Wend. 
490  ;  Hays  v.  Stone,  7  Hill  128  ;  JefiFrey  v. 
Cornish,  10  N.  H.  505;  Elliott  v.  Sleeper, 

2  Id.  525  ;  Maze  v.  Miller,  1  Wash.  C.  C. 
328;  Gallagher's  Exrs.  v.  Roberts,  2  Id. 
191 ;  Harris  v.  Lindsay,  4  Id.  271 ;  Peter 
V.  Beverly,  10  Peters  532  ;  Schemerhorn  v. 
Loines,  7  Johns.  311;  Gilead  v.  Smith,  2 
Gill  &  Johns.  494;  Bito  i'.  Porter,  9  Conn. 
23 ;  Perit  v.  Pitfield,  5  Rawle  166  ;  Tyson 
V.  Pollock,  1  Penna.  R.  375  ;  McGinn  v. 
Holmes,  2  Watts  121  ;  Risley  v.  Buchanan, 
5  Id.  118;  McLughan  v.  Bovard,  4  Id. 
308;  Costello  v.  Cave,  2  Hill  (S.  C.)  528; 
Chesturn  v.  Johnson,  2  Bailey  574;  Pres- 
cott  V.  Hubbell,  1  McCord  94 ;  Spear  v. 
Atkinson,  1  Ired.  2C2  ;  Watson  i'.  Owens, 
1  Richard.  Ill;  Weed  v.  Snow,  3   McL. 


262  ;  Gardiner  v.  Gorham,  1  Doug.  507  ; 
Steamboat  Charlotte  v.  Hammond,  9  Misso. 
59 ;  McCrary  v.  Carrington,  35  Ala.  698  ; 
Blunt  V.  Walker,  11  Wis.  334;  Sutliff  v. 
Atwood,  15  Ohio  186  ;  Crabtree  v.  Rowand, 
33  111.  421  ;  Smith  v.  Owens,  21  Cal.  11  ; 
while  others  support  the  principle,  that, 
the  legal  presumption,  if  uncontradicted, 
is,  that  the  note  was  intended  as  a  pay- 
ment for  the  debt,  for  otherwise  the 
debtor  might  be  compelled  to  pay  his 
debt  twice:  Johnson  v.  Johnson,  11 
Mass.  359 ;  Thatcher  et  al.  v.  Dinsmore,  5 
Id.  299 ;  Varner  v.  The  Inhabitants  of 
Nobleborough,  2  Greenl.  121  ;  Butts  v. 
Dean,  2  Mete.  76 ;  Wallace  v.  Agry  et  al., 
5  Mason  327  ;  Descandilla  et  al.  v.  Harris, 
8  Greenl.  298;  Ilsley  v.  Jewett,  2  Mete. 
168 ;  Holmes  v.  De  Camp,  1  Johns.  34 ; 
Pintard  v.  Tackington,  10  Id.  104  ;  Maneely 
V.  McGee,  6  Mass.  143;  Reed  v.  Upton,  10 
Pick.  522;  Jones  v.  Kennedy,  11  Id.  125; 
Watkins  v.  Hill,  8  Id.  522  ;  Cummings  v. 
Hackley,  8  Johns.  202  ;  Comstock  v. 
Smith,  10  Shep.  202;  Dogan  v.  Ashbey,  1 
Richard.  36;  Fowler  v.  Bush,  21  Pick. 
230;  French  v.  Price,  24  Id.  13  ;  Hutchins 
V.  Olcott,  4  Vt.  549  ;  Torrey  v.  Baxter,  13 
Id.  452;  Homes  v.  Smith,  16  Maine  177; 
Wise  V.  Hilton,  4  Id.  435;  Curtis  v.  Hub- 
bard, 9  Mete.  322  ;  Gilmore  v.  Bussy,  12 
Id.  418;  Follett  v.  Smith,  16  Vt.  30; 
Thornton  v.  Williams,  14  Ind.  418  ;  Smalley 
V.  Edey,  19  111.  207;  Wait  v.  Brewster,  31 
Vt.  516 ;  Robertson  v.  Branch,  3  Sneed 
506  ;  Paine  v.  pwinel,  53  Maine  52  ;  but 
where  the  note  has  been  negotiated  by  the 
creditor,  no  action  can  be  brought  on 
the  original  debt,  unless  the  note  is  pro- 
duced, or  accounted  for:  Small  v.  Jones, 
8  Watts  265  ;  Hughes  v.  Wheeler,  8  Cowen 
77;  Dayton  v.  Trull,  23  Wend.  345;  Hays 
V.  McClung,  4  Watts  452  ;  Harris  v.  John- 
ston, 3  Cranch  311  ;  McConnell  et  al.  v. 
Stettinius  et  al.,  2  Gilm.  707;  Cocke- v. 
Chancy,    Admr.,    14    Ala.    65;    Spear    v. 


OF    DEBTS. 


120 


creditor  than  the  whole  amount  of  his  demands,  it  is  competent  to  the 
debtor  to  make  the  payment  in  satisfaction  of  any  demand  he  may 


Atkinson,  1  Ired.  262  ;  Shaw  v.  Gorkin,  7 
N.  H.  16;  Holmes  v.  DeCamp,  1  Johns. 
34;  Burdick  v.  Given,  15  Id,  247;  Hum- 
phreys V.  Wheeler,  8  Cowen  77 ;  Bite  v. 
Porter,  9  Conn.  23  ;  Street  v.  Hall,  29  Vt. 
165;  Matthews  v.  Dare,  20  Md.  248. 

The  New  York  cases  of  Gumming  v. 
Hackley,  8  Johns.  202,  Tobey  v.  Barber,  5 
Id.  68,  and  Hour  v.  Clute,  15  Id.  224,  which 
seem  to  lead  to  the  conclusion  that  a 
creditor  may,  by  agreement,  receive  the 
debtor's  own  security,  not  negotiable,  in 
satisfaction  of  the  debt,  cannot  easily  be 
reconciled  with  the  decisions  in  Putnam  c. 
Lewis,  8  Johns.  389,  Frisbie  v.  Lamed,  21 
Wend.  450,  Myers  v.  Welles,  5  Hill  403, 
and  Cole  v.  Socket,  1  Hill  (N.  Y.)  517,  be- 
fore referred  to. 

But  the  mere  taking  of  securities  for  a 
pre-existing  debt,  does  not  thereby  release 
the  original  obligation,  unless  there  be  an 
agreement  to  accept  the  new  securities  in 
satisfaction  of  the  prior  indebtedness : 
Pittsburgh  &  Connellsville  R.  R.  Co.  v. 
Clarke,  29  Penn.  St.  146  ;  Torry  v.  Hadley, 
27  Barb.  192  ;  it  is  a  question  of  fact, 
whether  such  securities  are  to  be  regarded 
as  payment,  or  collateral  security:  Sellers 
V.  Jones,  22  Penn.  St.  425  ;  Dickinson  v. 
King,  28  Vt.  378. 

A  check,  which  has  been  taken  as  pay- 
ment, will  cancel  the  debt :  Barnard  v. 
Graves,  16  Pick.  41  ;  Dennie  v.  Hart,  2  Id. 
204;  Franklin  v.  Vanderpool,  1  Hall  (N. 
Y.)  78  ;  but  the  presumption  of  law  is, 
that  a  check  is  only  payment  when  rea- 
lized:  Cromwell  v.  Lovett,  1  Hall  (N.  Y.) 
56;  The  People  i;.  Howell,  4  Johns.  296; 
Olcott  V.  Rathbone,  5  Wend.  490  ;  Downey, 
Exr.,  V.  Hicks,  Exrx.,  14  How.  240;  Okie 
V.  Spencer,  2  Whart.  253  ;  Mclntyre  v.  Ken- 
nedy, 31  Penn.  St.  448  ;  Strong  v.  King,  35 
III.  9  ;  and,  of  course,  a  note  or  check  is  but  a 
conditional  payment,  when  it  is  expressed 
to  be  in  full,  if,  or  when  paid:  Herring 
V.  Sanger,  3  Johns.  Cas.  71 ;  Tyson  et  al. 
V.  Pollock,  1  Penna.  R.  375  ;  Chapman  v. 
Steinmetz,  1  Dall.  261  ;  Okie  v.  Spencer,  2 
11 


Whart.  253;  Proctor  v.  Mather,  3  B.  Mon. 
353. 

The  acceptance  of  a  higher  security  for 
the  same  debt,  will,  as  a  general  thing,  ex- 
tinguish an  inferior  security:  Green  v. 
Sarmiento,  1  Peters  C.  C.  74 ;  Butler  v. 
Miller,  1  Denio  407  ;  Carson  v.  Monteiro,  2 
Johns.  308;  Pleasants  v.  Meng  et  al.,  1 
Dall.  380 ;  United  States  v.  Price,  9  How. 
83  ;  Willings  et  al.  v.  Consequa,  1  Peters 
C.  C.  393  ;  Ward?;.  Johnson,  13  Mass.  140  ; 
Robertson  v.  Smith  et  al.,  18  Johns.  459  ; 
Peters  v.  Sandford,  1  Denio  224 ;  Penny  v. 
Martin  et  al.,  4  Johns.  Ch.  566  ;  Averill  v. 
Locks,  6  Barb.  S.  C.  20 ;  Sloo  v.  Lea,  18 
Ohio  279;  Ferrall  et  al.  v.  Bradford, 
2  Fla.  508  ;  Smith  et  al.  v.  Black,  9  S.  &  R. 
142  ;  Lewis  v.  Williams,  6  Whart.  264  ;  An- 
derson V.  Levan,  1  W.  &  S.  334 ;  but,  both 
the  securities  must  be  between  the  same 
parties  :  Day  et  al.  v.  Seal  et  al.,  14  Johns. 
404 ;  Axers,  Exrx.,  v.  Musselman,  2 
Browne  11;  Beale  v.  The  Bank,  5  Watts 
529;  Wolf  V.  Wyeth,  11  S.  &  R.  149; 
Davis  V.  Anable  et  al.,  2  Hill  (N.  Y.)  339. 

And  in  all  cases  where  the  instrument 
is  between  the  same  parties,  and  for  the 
same  sum  as  the  former  security,  the  gen- 
eral course  of  business,  as  well  as  the 
presumption  of  fact,  would  seeni  to  imply 
that  the  more  recent  security  extinguishes 
the  older :  Slaymaker  v.  Gundacker's 
Exrs.,  10  S.  &  R.  75 ;  Bank  of  the  United 
States  V.  Daniels,  12  Peters  14;  Castleman 
V.  Holmes,  4  J.  J.  Marsh.  1 ;  Stewart's  Ap- 
peal, 3  W.  &  S.  476  ;  Frisbie  v.  Larned,  21 
Wend.  450  ;  Butler  v.  Miller,  1  Denio  407  ; 
Gardner  v.  Hust,  2  Richard.  601.  Thus, 
the  giving  of  a  new  note  for  an  old  one 
is  equivalent  to  a  payment  of  the  latter: 
Cornwall  v.  Gould,  4  Pick.  444 ;  Huse  v. 
Alexander,  2  Mete.  157  ;  and  so  of  a  bond: 
Morrison  v.  Berkey,  7  S.  &  R.  238 ;  Ham- 
ilton, Exr.,  V.  Collender's  Exrs.,  1  Dall. 
420;  Gregory  v.  Thomas,  20  Wend.  17. 
This,  however,  is  a  question  to  be  deter- 
mined by  the  intention  of  the  parties : 
United  States  v.  Lyman,    1    Mason    482 ; 


120 


OF    CIIOSES    IN   ACTION. 


please,  and  the  creditor  must  appropriate  the  payment  accordingly  ;{b) 
r*ion  *^"*^  ^^  ^'^^'  payment  be  made  generally,  without  any  express 
^  "  appropriation,  the  creditor  may  elect,  at  the  time  of  payment, (c) 
or  within  a  reasonable  time  after,((;?)  to  appropriate  the  money  to  which- 
ever demand  he  may  please.  And  if  no  election  as  to  the  appropriation 
of  the  payment  should  be  made  on  either  side,  the  law  will,  in  ordinary 
cases  of  current  accounts,  presume  that  the  first  item  on  the  debit  side 
is  discharged  or  reduced  by  the  first  payment  entered  on  the  credit  side, 
and  so  on  in  the  order  of  time.(6')^     When  the  debt  carries  interest,  the 

{/))  Shaw  V.  Picton,  4  B.  &  C.  715  (E.  C.  L.  R.  vol.  10)  ;  Nash  v.  Hodgson,  Ld.  C.  & 
Lds.  Justices,  1  Jur.  N.  S.  946;  6  De  Gex,  M.  &  G.  474. 

(c)  Dcvaynes  v.  Noble,  1  Meriv.  604. 

(d)  Simson  v.  Ingham,  2  B.  &  G.  65  (E.  C.  L.  R.  vol.  9). 

(e)  1  Meriv.  608;  Williams  v.  Rawlinson,  10  J.  B.  Moore  362;  Merriman  v.  Ward,  1 
John.  &  H.  371. 


Van  Vleet  et  al.  v.  Jones  et  al.,  Spencer 
341  ;  Wallace  v.  Farman,  4  Watts  378  ; 
Sellers  v.  Jones,  22  Penn.  St.  425;  Shaw 
V.  The  Church,  39  Id.  226 ;  and  that  inten- 
tion, in  doubtful  cases,  to  be  ascertained 
by  the  intervention  of  a  jury :  Hart  v. 
Boiler,  15  S.  &  R.  162  ;  Jones  v.  Shawhan, 
4  W.  &  S.  257  ;  Musgrove  v.  Gibbs,  1  Dall. 
216  ;  Hacker  etal.  v.  Perkins,  5  Whart.  95  ; 
Porter  v.  Talcot  et  al.,  1  Cowen  359  ;  Bank 
of  the  Commonwealth  v.  Letcher,  3  J.  J. 
Marsh.  195  ;  Downey  v.  Hicks,  14  How.  240. 
1  The  doctrine  stated  in  the  text  is  the 
law  of  this  country  ;  for  where  a  debtor, 
being  liable  to  his  creditor  on  more  than 
one  account,  makes  a  voluntary  partial 
payment,  he  has  a  right  to  apply  it  to 
what  debt  he  pleases  :  Speck  v.  The  Com- 
monwealth, 3  W.  &  S.  328  ;  Berghaus  v. 
Alter,  9  Watts  387  ;  The  Mayor  and  Com- 
monalty of  Alexandria  v.  Patten  et  al.,  4 
Cranch  317  ;  Field  et  al.  v.  Holland  et  al., 
6  Id.  8;  Bosley  v.  Porter,  4  J.  J.  Marsh. 
621;  Hall  et  al.  v.  Constant,  2  Hall  185; 
McDonald  i).  Pickett,  2  Bail.  617;  Black 
V.  Schooler,  2  MeC.  293  ;  BonaflFe  v.  Wood- 
bury, 12  Pick.  456  ;  Hussey  v.  The  Manu- 
facturers' and  Mechanics'  Bank,  10  Id. 
415;  Martin  v.  Draher,  5  Watts  544; 
Moorhead  v.  The  West  Branch  Bank,  3  W. 
&  S.  550  ;  Boutwell  v.  Mason  et  al.,  12  Vt. 
608  ;  Randall  v.  Parramore  et  al.,  1  Fla. 
410 ;    Read  v.    Boardman,  20    Pick.    441 ; 


Pindall's  Exrx.  v.  The  Bank  of  Marietta, 
10  Leigh  481 ;  MiUer  v.  Trevilian,  2  Rob. 
(Va.)  2;  Jackson  v.  Bailey,  12  HI.  159; 
McTavish  et  al.  v.  Carroll,  1  Md.  Ch.  Dec. 
ICO;  Treadwell  v.  Moore,  34  Maine  112; 
CaldweU  v.  Wentworth,  14  N.  H.  431  ; 
Spring  Garden  Association  v.  Tradesmen's 
Loan  Association,  46  Penn.  St.  495 ;  Cris- 
ler  V.  McCoy,  33  Miss.  445  ;  Calvert  v. 
Carter,  18  Md.  73 ;  Irwin  v.  Paulett,  1 
Kansas  418;  and,  if  the  debtor  does  not 
make  the  application,  the  creditor  may: 
Speck  V.  The  Commonwealth,  3  W.  &  S. 
328;  Berghaus  v.  Alter,  9  Watts  387  ;  The 
Mayor  and  Commonalty  of  Alexandria  v. 
Patten  et  al.,  4  Cranch  317  ;  Fields  et  al. 
V.  Holland  et  al.,  6  Id.  8  ;  Mann  v.  Marsh, 
2  Caines  99  ;  Reynolds  et  al.  v.  McFarlane, 
Overton  488  ;  Arnold  v.  Johnson,  1  Scam. 
196 ;  McFarland  et  al.  v.  Lewis  et  al.,  2 
Id.  345  ;  Hillyer  v.  Vaughan,  1  J.  J.  Marsh. 
583  ;  Briggs  v.  Williams  et  al.,  2  Vt.  283  ; 
Rossian  et  al.  v.  Call  et  al.,  14  Id.  83  ; 
Selleck  v.  The  Sugar  Hollow  Turnpike 
Co.,  13  Conn.  453;  Rackley  v.  Pearce,  1 
Kelly  241 ;  Sturges  et  al.  v.  Bobbins,  7 
Mass.  301 ;  Brewer  v.  Knapp  et  al.,  1  Pick. 
332  ;  Logan  v.  Mason,  6  W.  &  S.  9 ;  The 
Stamford  Bank  v.  Benedict,  15  Conn.  438; 
Mitchell  V.  Dall,  4  Gill  &  Johnb.  3G1 ; 
Clark  et  al.  v.  Burdett,  2  Hall  197  ;  Van 
Rensselaer's  Exrs.  v.  Roberts,  5  Denio  470  ; 
Hamilton  v.  Benbury,   2  Hayw.  385;  Ni- 


OF   DEBTS. 


121 


payment  is  considered  to  be  applied  in  the  first  place  in  discharge  of  the 
interest  then  due,  and  the  surplus,  if  any,  in  discharge  pro  tanto  of  the 


agara  Bank  v.  Rosevelt,  9  Cowen  409 ; 
Taylor  et  al.  v.  Jones,  1  Cart.  17  ;  McTav- 
ish  et  al.  v.  Carroll,  1  Md.  Ch.  Dec.  160; 
Sawyer,  Admr.,  v.  Tappan,  14  N.  H.  352  ; 
Caldwell  v.  Wentworth,  Id.  431  ;  Philadel- 
phia xMercantile  Loan  Association  v.  Moore, 
47  Penn.  St.  233  ;  Bird  v.  Davis,  1  McCar- 
ter  (N.  J.)  467;  Bobe  v.  Stickney,  3G 
Ala.  482;  Fargo  v.  Buell,  21  Iowa  292; 
Wendt  V.  Ross,  33  Cal.  650  ;  Hargraves  v. 
Cooke,  15  Geo.  321  ;  but,  where  neither 
debtor  nor  creditor  makes  an  appropria- 
tion, the  court  will  do  it  for  them,  in  ac- 
cordance with  what  is  just  and  equitable  : 
Young  V.  Woodward,  44  N.  H.  250  ;  Hemp- 
field  Railroad  v.  Thornburg,  1  W.  Va.  261 ; 
Speck  V.  The  Commonwealth,  3  W.  &  S. 
328 ;  Berghaus  v.  Alter,  9  Watts  387  ; 
Fields  et  al.  v.  Holland  et  al.,  6  Cranch  8  ; 
Cremer  v.  Higginson,  1  Mass.  338  ;  McTav- 
ish  et  al.  v.  Carroll,  1  Md.  Ch.  Dec.  160  ; 
Caldwell  v.  Wentworth,  14  N.  H.  431 ; 
Pierce  v.  Knight,  31  Vt.  701. 

The  intention  of  the  debtor  to  appropri- 
ate a  payment,  may,  however,  be  indicated 
by  the  circumstances  of  the  case,  as  well 
as  by  an  express  direction :  Tayloe  v. 
Sandiford,  7  Wheat.  14 ;  Mitchell  v.  Dall, 
2  Har.  &  Gill  160  ;  s.  c.  4  Gill  &  Johns. 
361  ;  Fouke  v.  Bowie,  4  Har.  &  Johns.  566  ; 
Robert  et  al.  v.  Garnie,  3  Caines  14 ;  West 
Branch  Bank  v.  Moorehead,  5  W.  &  S.  542  ; 
Dickinson  College  v.  Church,  I  Id.  462  ; 
Schnell  v.  Schroeder,  Bailey  Eq.  335  ;  Scott 
V.  Fisher,  4  Mon.  387  ;  Stone  v.  Seymour,  8 
Wend.  404;  s.  c.  15  Id.  19;  Terhune  v. 
Colton,  1  Beasley  233,  312  ;  and  so  of  the 
intention  of  the  creditor :  Starrett  v. 
Barber,  20  Maine  457  ;  Allen  v.  Kimball,  23 
Pick.  473;  Upham  et  al.  v.  Lefavour,  11 
Mete.  174;  Allen  v.  Culver,  3  Denio  285; 
Lindsey  v.  Steven,  5  Dana  104  ;  and  con- 
sequently, the  discretionary  power  of  the 
court,  to  appropriate  a  payment  not  ex- 
pressly applied  by  either  debtor  or  cred- 
itor, is  to  be  controlled  by  the  intention  of 
the  parties,  as  determined  by  all  the  cir- 
cumstances of  the  case  :  Emery  v.  Tichout, 


13  Vt.  15;  Robinson  et  al.  v.  Doolittle  et 
al.,  12  Id.  246;  Hillyer  i'.  Vaughan,  1  J.  J. 
Marsh.  583  ;  The  Stamford  Bank  v.  Bene- 
dict, 15  Conn.  438;  Cheston  v.  Wheel- 
wright, Id.  562  ;  Portland  Bank  v.  Brown, 
22  Maine  295;  Smith  v.  Lloyd,  11  Leigh 
512;  Caldwell  v.  Wentworth,  14  N.  H. 
431;  Johnson's  Ap.,  37  Penn.  St.  270; 
Smith  V.  Brooke,  49  Id.  147  ;  Slaughter  v. 
Milling,  15  La.  Ann.  525  ;  Byrne  v.  Gray- 
son, Id.  457.  Thus,  in  cases  of  running 
accounts,  payments  are  to  be  applied  to 
the  debts  antecedently  incurred,  in  order 
of  time :  Speck  v.  The  Commonwealth,  3 
W.  &  S.  328  ;  Berghaus  v.  Alter,  9  Watts 
387  ;  United  States  v.  Kirkpatrick  et  al.,  9 
Wheat.  720  ;  Jones  v.  The  United  States,  7 
How.  681 ;  Boody  et  al.  v.  The  United 
States,  1  Woodbury  &  Minot  151;  Post- 
master-General V.  Furbur,  4  Mason  333  ; 
United  States  v.  Wardwell  et  al.,  3  Id.  82  ; 
Gass  V.  Stinson,  3  Sumn.  99;  McKenzie  v. 
Nevins,  22  Maine  138  ;  Miller  v.  Miller,  23 
Id.  22;  Smith  v.  Lloyd,  11  Leigh  512; 
Fairchild  v.  Holly,  10  Conn.  176;  Allen  v. 
Culver,  3  Denio  285  ;  Ross's  Exrs.  v.  Mc- 
Lauchlan's  Admr.  et  al.,  7  Gratt.  86;  Mc- 
Kee's  Exrs.  v.  Commonwealth,  2  Grant's 
Cas.  23  ;  Pierce  v.  Sweet,  35  Penn.  St.  151 ; 
Antarctic,  Sprague's  Decs.  206 ;  Price  v. 
Cutts,  29  Ga.  142  ;  Berrian  v.  New  York,  4 
Rob.  (N.  Y.)  538  ;  Home  v.  Planters'  Bank, 
32  Ga.  1 ;  and  the  appropriation  will  be 
made  to  the  first  items  of  such  an  account 
which  are  secured,  although  the  balance 
be  unsecured:  Gushing  v.  Wyman,  44 
Maine  121;  but  see  exceptions  to  this 
rule,  in  the  case  of  collectors  of  taxes : 
United  States  v.  Patterson,  7  Cranch 
572  ;  Jones  v.  The  United  States,  7  How. 
681  ;  Seymour  v.  Van  Slyck,  8  Wend.  404  • 
Stone  V.  Seymour,  15  Id.  19  ;  Postmaster  y. 
Norvell,  Gilpin  107  ;  City  of  St.  Joseph  v. 
Merlatt,  26  Misso.  233,  So,  where  there 
are  two  debts,  one  bearing  interest,  and 
the  other  not,  the  payment  is  to  be  appro- 
priated to  the  debt  bearing  interest: 
Gwinn  v.  Whittaker,  1  Har.  &  Johns.  754 ; 


121 


OF   CnOSES    IN    ACTION. 


principal.  For  no  creditor  would  apply  any  payment  to  the  discharge 
of  part  of  the  principal,  which  carries  interest,  instead  of  to  the  discharge 
of  interest  for  which,  when  due,  no  further  interest  is  payable.(/) 

(  f)   Bower  v.  Marris,  1  Cr.  &  Phi.  351,  355. 


Dorsey  v.  Gassaway,  2  Id.  402  ;  Bacon  v. 
Brown,  1  Bibb  334;  Bcauton  v.  Rice,  5 
Mon.  253;  McTavish  et  al.  v.  Carroll,  1 
Md  Ch.  Dec.  IGO;  Scott  v.  Cleveland,  33 
Miss.  447  ;  McFadden  v.  Fortier,  20  111. 
509  ;  and  a  payment  mnst  be  applied  to  a 
debt  due,  rather  than  to  one  not  due :  Mc- 
Dowell V.  The  Blackstone  Canal  Co.,  5 
Mason  11 ;  Baker  v.  Stackhoole,  9  Cowen 
420  :  Bacon  v.  Brown,  1  Bibb  334  ;  Stone 
V.  Seymour,  15  Wend.  19 ;  Upham  et  al.  v. 
Lefavour,  11  Mete.  174  ;  Lebleu  v.  Ruther- 
ford et  al.,  9  Robins.  95 ;  FoUain  et  al.  v. 
Orillion,  Id.  506  ;  Treadwell  v.  Moore,  34 
Maine  112;  Caldwell  v.  Wentworth,  14 
N.  H.  431 ;  Thomas  v.  Kelsey,  30  Barb.  268  ; 
EfiBnger  v.  Henderson,  33  Miss.  449 ; 
Heintz  v.  Cahn,  29  111.  308;  Cloney  v. 
Richardson,  34  Misso.  370  ;  and  to  a  seve- 
ral, in  preference  to  a  joint  debt:  Liver- 
more  V.  Claridge,  33  Maine  428  ;  and,  to  a 
leo-al,  rather  than  to  an  illegal  debt:  Hall 
V.  Clement,  41  N.  H.  166;  Rohan  v.  Han- 
son, 11  Cush.44;  Gill  v.  Rice,  13  Wis. 
549;  Burrows  v.  Cook,  17  Iowa  436  ;  but 
to  a  debt  barred  by  the  statute  of  limita- 
tions, rather  than  to  one  not  so  barred  : 
Robinson  v.  Allison,  36  Ala.  525.  So, 
again,  the  appropriation  by  the  court,  in 
the  case  of  two  debts,  one  of  which  is  se- 
cured, and  the  other  not,  must  be  made  to 
the  debt  not  secured  ;  or,  if  both  debts  are 
secured,  then  to  the  one  of  which  the  se- 
curity is  most  precarious  :  Field  et  al.  v. 
Holland  et  al.,  6  Cranch  8  ;  Merrimack  Co. 
Bank  v.  Brown,  12  N.  H.  321  ;  Portland 
Bank  v.  Brown,  22  Maine  295 ;  Niagara 
Bank  r>.  Rosevelt,  9  Cowen  410  ;  Newman 
V.  Meek,  1  Sm.  &  M.  331  ;  Hammer's  Admr. 
V.  Rochester,  2  J.  J.  Marsh.  144  ;  Blanton 
V.  Rice,  5  Mon.  253  ;  Smith  v.  Lloyd,  11 
Leigh  512  ;  The  Stamford  Bank  v.  Bene- 
dict, 15  Conn.  438  ;  Cheston  v.  Wheelright, 
Id.  562  ;   Vance  v.  Monroe,  4  Gratt.  53  ; 


Upham  et  al  v.  Lefavour,  11  Mete.  174; 
The  Ordinary  v.  McCollum,  3  Strobh.  494  ; 
Blackhouse  et  al.  v.  Patton  et  al.,  5  Peters 
161  ;  Briggs  v.  Williams  et  al.,  2  Vt.  283  ; 
Emery  v.  Tichout,  13  Id.  15  ;  Hilton  v. 
Barley,  2  N.  H.  193  ;  Blackstone  Bank  v. 
Hill,  10  Pick.  129  ;  Capen  v.  Alden,  5 
Mete.  268  ;  Jones  v.  Kilgore,  2  Richard.  Eq. 
64  ;  McTavish  et  al.  v.  Carroll,  1  Md.  Ch. 
Dec.  160  ;  N.  0.  Ins.  Co.  v.  Tio,  15  La. 
Ann.  174  ;  Foster  v.  McGraw,  64  Penn.  St. 
464  ;  but  see,  to  the  contrary  :  Gwinn  v. 
Whitaker,  1  Har.  &  Johns.  754  ;'Dorsey  v. 
Gassaway,  2  Id.  402  ;  Pattison  v.  Hall,  9 
Cowen  747  ;  Robinson  et  al.  v.  Doolittle  et 
al.,  12  Vt.  246.  In  accordance,  also,  with 
this  doctrine,  a  partial  payment,  unappro- 
priated by  either  party,  must  be  applied  to 
the  interest,  rather  than  to  the  principal 
of  the  debt:  Spires  v.  Hamot,  8  W.  &  S. 
17  ;  Commonwealth,  for  the  use,  &c.,  v. 
Vanderslice  et  al.,  Admrs.,  8  S.  &  R.  425  ; 
Smith  V.  Admx.  of  Shaw,  2  Wash.  C.  C. 
167  ;  Tracy  v.  Wikoff,  1  Dall.  124  ;  Prim- 
rose V.  Hart,  Id.  378  ;  Steele  v.  Taylor,  4 
Dana  445;  Story  v.  Livingston,  13  Peters 
360  ;  The  United  States  v.  McLemore,  4 
How.  286  ;  Dean  v.  Williams,  17  Mass. 
417  ;  Commonwealth  v.  Miller's  Admrs.,  8 
S.  &  R.  452  ;  Gwin  v.  Whitaker,  1  Har.  & 
Johns.  754 ;  Frazier  v.  Hyland,  Id.  98  ; 
Jones  V.  Ward,  10  Yerg.  161  ;  Guthrie  et 
al.  V.  Wickliffe,  1  Marsh.  584  ;  Hart  v.  Der- 
man,  2  Fla.  445 ;  The  Union  Bank  of 
Louisiana  v.  Kindrick,  10  Rob.  51  ;  Wil- 
liams V.  Houghtailing,  3  Cowen  87  ; 
Stoughton  V.  Lynch,  2  Johns.  Ch.  209  ; 
Lewis's  Exr.  v.  Bacon's  Exrs.,  3  Hen.  & 
Munf.  89  ;  Edes  v.  Goodridge,  4  Mass.  103  ; 
Fay  I'.  Bradley  et  al.,  1  Pick.  194  ;  Mere- 
dith V.  Banks,  1  Halst.  408  ;  Lightfoot  v. 
Price,  4  Hen.  &  Munf.  431  ;  Bunn  v. 
Moore's  Exrs.,  1  Hayw.  272  ;  Anon.,  2  Id. 
17  ;  North  et  al.  v.  Mattell,  Id.  151  ;  Chap- 


OF   DEBTS. 


121 


When  a  person  becomes  so  embarrassed  as  to  be  unable  to  pay  all  his 
debts  in  full,  he  usually  endeavors  to  enter  into  a  composition  with  his 
creditors,  prevailing  on  them  to  accept  so  much  in  the  pound,  and  to 
allow  a  given  time  for  payment.  In  this  case  a  letter  of  license  is  gene- 
rally given  by  the  creditors,  by  which  they  covenant  not  to  take  any 
proceedings  for  their  debts  in  the  meantime;  and  this  license  is  fre- 
quently embodied  in  a  deed  of  inspectorship^  by  which  certain  inspectors 
are  appointed  to  watch  the  winding-up  of  the  debtor's  aflFairs  on  behalf 
of  the  creditors.  The  payment  of  the  composition  is  sometimes  guaran- 
teed by  some  friends  of  the  debtor  as  his  sureties,  and  when  payment  is 


made,  a  *release  of  all  demands  is  given  by  the  creditors.     If, 


however,  the  composition  should  not  be  punctually  paid,  the 


'    [*122] 


line  V.  Scott,  4  Har.  &  McHen.  94  ;  Admrs. 
of  Norwood  ads.  Manning,  2  N.  &  McC. 
395  :  Johnson  v.  Johnson,  5  Jones  Eq.  157  ; 
Hampton  v.  Dean,  4  Texas  455  ;  unless  the 
payment  is  made  before  the  debt  is  due,  in 
which  case  it  should  be  applied  to  the  ex- 
tinguishment of  the  principal  :  Starr  v. 
Richmond,  30  111.  276;  and  interest  upon 
interest  is  to  be  first  paid  :  Anketel  v.  Con- 
verse, 17  Ohio  St.  11 ;  and,  where  a  creditor 
is  entitled  to  the  payment  of  two  distinct 
sums,  one  of  which  is  in  his  own  right, 
and  the  other  to  be  paid  to  him  as  a  trus- 
tee, and  a  partial  payment  is  made,  it 
must  be  appropriated  rateably  :  Scott  v. 
Ray  et  al.,  18  Pick.  361 ;  Barrett  v.  Lewis, 
2  Id.  123  ;  Cole  v.  Trull,  9  Id.  325 ;  Harker 
et  al.  V.  Conrad  et  al.,  12  S.  &  R.  301  ;  and 
so,  when  one  holds  a  debt  due  to  himself, 
and  another  debt  due  to  himself  and  an- 
other, the  appropriations  must  be  rateably  : 
Colby  V.  Copp,  35  N.  H.  434. 

Where  an  appropriation  or  application 
has  been  once  made,  it  cannot  be  altered 
without  the  consent  of  the  parties :  Hill 
et  al.  V.  Sutherland's  Exrs.,  1  Wash.  C.  C. 
128;  White  v.  Trumbull,  3  Green  314; 
Hilton  V.  Burley,  2  N.  H.  193 ;  Hopkins  v. 
Conrad  et  al.,  2  Rawle  316;  Martin  v. 
Draher,  5  Watts  544;  Bank  of  North 
America  v.  Meredith,  2  Wash.  C.  C.  47  ; 
Allen  V.  Calver,  3  Denio  285  ;  The  Mayor 
and  Commonalty  of  Alexandria  v.  Patten 
et  al,,  4  Cranch  317  ;  Rundlett  v.  Small, 
25  Maine  29;  Jackson  v.  Bailey,  12  111. 
159  ;  Hubbell  v.  Flint,  15  Gray  650. 


The  most  embarrassing  question  in  con- 
nection with  this  subject,  is,  as  to  when 
the  appropriation  is  to  be  made  ;  some  of 
the  cases  holding,  that  it  may  be  made  at 
any  time  :  The  Mayor  and  Commonalty  of 
Alexandria  v.  Patten  et  al.,  4  Cranch  317  ; 
Brady's  Admr.  v.  Hill  et  al.,  1  Mo.  315; 
Hilton  V.  Barley,  2  N.  H.  193;  Starrett  v^ 
Barber,  20  Maine  457  ;  Lindsey  v.  Stevens  , 
5  Dana  104;  Heilborn  v.  Bissel  et  al.,  1 
Bail.  Eq.  430  ;  Jones  v.  The  United  States, 
7  How.  681;  and  others,  that  the  appli- 
cation must  be  made  within  a  reasonable 
time:  Harker  et  al.  v.  Conrad  et  al.,  12 
S.  &  R.  301;  Briggs  v.  Williams  et  al.,  2 
Vt.  283;  Fairchild  v.  Holly,  10  Conn.  176; 
Patterson  v.  Hall,  9  Cowen  747 ;  but  there 
is  no  doubt,  that  the  application  cannot 
be  made  after  a  controversy  has  arisen 
between  the  parties :  United  States  i\ 
Kirkpatrlck,  9  Wheat.  720 ;  Robinson  et 
al.  V.  Doolittle  et  al.,  12  Vt.  246;  Fair- 
child  V.  Holly,  10  Conn.  176. 

In  the  recent  case  of  Marsh  v.  The 
Oneida  Central  Bank,  34  Barb.  298,  it  was 
held,  that  a  bank  which  held  a  note 
against  a  depositor,  was  not  bound  to 
make  application  of  deposits  when  the 
note  became  due,  but  might  wait  until 
judgment  was  obtained  against  the  de- 
positor. For  general  rules,  as  to  the 
rights  of  creditor  and  debtor  in  regard  to 
the  application  of  payments,  see  the  mod- 
ern case  of  Gaston  v.  Barney,  11  Ohio 
St.  506. 


122  OF    CHOSES    IN    ACTION. 

creditors  will  no  longer  be  restrained  from  proceeding  to  enforce  the  full 
payment  of  their  debts.(,7)  Such  creditors  as  hold  security  for  their 
debts  should  openly  stipulate  that  their  securities  are  not  to  be  affected ; 
and  such  a  stipulation  will  be  sufficient  to  preserve  them. (A)  But  any 
secret  agreement  between  the  debtor  and  a  creditor,  by  which  he  is  to 
have  any  advantage  over  the  others,  in  order  to  induce  him  to  agree  to 
the  composition,  is  evidently  a  fraud  on  the  other  creditors,  and  as  such 
is  absolutely  void,(i)  and  prevents  the  creditor  who  is  party  to  it  from 
suing  for  his  share  in  the  composition. (^^ 

The  Bankruptcy  Act,  1861, (?)  provided,  that  every  deed,  instrument 
or  agreement  whatsoever,  by  which  a  debtor,  not  being  a  bankrupt,  con- 
veved,  or  covenanted  or  agreed  to  convey  his  estate  and  effects,  or  the 
principal  part  thereof,  for  the  benefit  of  his  creditors,  or  made  any 
arrangement  or  agreement  with  his  creditors,  or  any  person  on  their 
behalf  for  the  distribution,  inspection,  conduct,  management  or  winding- 
up  of  his  affairs  or  estate,  or  the  release  or  discharge  of  such  debtor  from 
his  debts  or  liabilities,  should,  within  twenty-eight  days  from  and  after 
the  execution  thereof  by  such  debtor,  or  within  such  further  time  as  the 
r*19qi  Court  *in  London  should  allow,(»j)  be  registered  in  the  Court 
*-     "'  -^   of  Bankruptcy ;  and  in  default  thereof  should  not  be  received 

(g)  Cranley  v.  Hillary,  2  M.  &  Selw.  120. 

{h)  Nichols  V.  Morris,  3  B.  &  Ad.  41  (E.  C.  L.  R.  vol.  23)  ;  Ex  parte  Glendinning, 
Buck  517;  Lee  v.  Lockhart,  3  Myl.  &  Cr.  302;  Cullingworth  v.  Lloyd,  3  Beav.  385,  and 
the  cases  collected,  p.  395  ;  Bush  v.  Shipman,  14  Sim.  239. 

{i)  Leicester  v.  Rose,  4  East  372  ;  Knight  v.  Hunt,  5  Bing.  432  (E.  C.  L.  R.  vol.  15)  ; 
Pendlebury  v.  Walker,  4  You.  &  Col.  424  ;  Alsager  v.  Spalding,  4  N.  C.  407  ;  Higgins 
V.  Pitt,  4  Ex.  Rep.  312  ;  Pfleger  v.  Browne,  28  Beav.  391  ;  Mare  v.  Warner,  3  GifiF.  100 ; 
Mare  v.  Earle,  Id.  108. 

(/f)  Howden  v.  Haigh,  11  Ad.  &  E.  1033  (E.  C.  L.  R.  vol.  39)  ;  Ex  parte  Oliver,  4 
De  Gex  &  Smale  354.     See  Atkinson  v.  Denby,  7  H.  &  N.  934. 

(/)  Stat.  24  &  25  Vict.  c.  134,  s.  194. 

(to)  Wishart  v.  Fowler,  4  B.  &  S.  674  (E.  C.  L.  R.  vol.  116). 

1  In  the  absence  of  any  agreement  made  in  the  35th  section  of  the  Bankrupt  Act, 

between    a    debtor   and    his    creditors,   it  previous  to  bankruptcy  or  insolvency,  or 

seems  to   be   the  prevailing   rule   in  this  in  contemplation   thereof,  or  anticipatory 

country,  that  a  debtor  may  give  a  prefer-  and  with  a  view  to   a  subsequent  assign- 

ence  to  one  creditor,  or  one  set  of  credi-  ment  for  the  benefit  of  creditors,  that  any 

tors,  by  paying  his  or  their  debts  in  full,  question  of  its  validity  can   arise.     For  a 

to   the   exclusion  of  all  the   rest  of  the  full  consideration  of  the  subject,  see  Hil- 

creditors,  provided  it  is  done  in  good  faith.  Hard's  Treatise  on  the  Law  of  Bankruptcy 

It  is  only  where  this  preference  is  made  and   Insolvency,  chap,  x.,  pp.  322  to   361 

within    six  or  four  months,  according  to  inclusive ;    and    Brightly's    Bank.    L.    66, 

the  circumstances  of  each  case  as  specified  72  and  88'. 


OF   DEBTS. 


123 


in  evidence.     And  every  such  deed,  on  being  so  registered  as  aforesaid, 
should  have  a  memorandum  thereof  written  on  the  face  of  such  deed 
stating  the  day  and  the  hour  of  the  day  at  which  the  same  was  brought 
into  the  oflBce  of  the  Chief  Registrar  for  registration. (w)     But  this  act 
has  now  been  repealed.(o) 

In  some  cases  an  assignment  of  the  debtor's-  estate  and  effects  was 
made  to  trustees  for  sale  and  conversion  into  money,  to  be  divided  rate- 
ably  amongst  the  creditors.^     As,  however,  this  is  the  process  adopted 

(n)  Sect.  196;  Stanger  v.  Miller,  Ex.  11  Jur.  N.  S.  1005. 
(o)   Stat.  32  &  33  Vict.  c.  83. 


^  In  the  State  of  Pennsylvania,  voluntary- 
assignments  for  the  benefit  of  creditors, 
are  chiefly  controlled  by  the  Acts  of  the 
Legislature  of  1836,  1843,  and  1849  :  Purd. 
Dig.  (1861),  pp.  60,  61.  A  voluntary 
assignment  for  the  benefit  of  creditors, 
has  been  defined  by  the  Supreme  Court  of 
that  State,  to  be  an  assignment  in  trust, 
of  the  whole,  or  a  part  of  a  debtor's  pro- 
perty, for  the  benefit  of  all  his  creditors 
equally:  Wiener  v.  Davis,  18  Penn.  St. 
332 ;  hence  a  preference  created  in  and 
by  such  an  assignment,  is  contrary  to  law, 
and  therefore  void:  Wiener  v.  Davis,  18 
Penn.  St.  333;  Blakey's  Ap.,  T  Id.  450; 
Worman  v.  Wolfersberger's  Exrs.,  19  Id. 
59  ;  Lea's  Ap.,  9  Id.  504,  but  it  is  only  the 
preference  which  is  void,  and  not  the 
assignment,  which  will  operate  for  the 
benefit  of  all  the  creditors  rateably:  Wiener 
V.  Davis,  a7i(e ;  Law  w.  Mills,  18  Penn.  St. 
185  ;  Bittenbender  v.  Sunbury  &  Erie  R.  R. 
40  Id.  269;  Act  of  17  April,  1843,  Purd. 
Dig.  60.  But  preferences  taken  alone,  and 
not  in  connection  with  an  assignment  in 
trust,  or  any  other  disposition  of  the 
debtor's  property,  for  the  benefit  of  his 
creditors  generally,  are  not  unlawful  if 
bona  fide  made  :  Worman  v.  Wolfersberger's 
Exrs.,  19  Penn.  St.  59;  Morgan's  Ap.,  20 
Id.  152 ;  Siegel  v.  Chidsey,  28  Id.  281  ; 
Burd  V.  Smith,  4  Dall.  85  n. ;  Mechanics' 
Bank  v.  Gorman,  8  W.  &  S.  308  ;  Dana  v. 
Bank  U.  S.,  5  Id.  223  ;  and  hence  it  has 
been  held,  that  a  creditor  who  has  a  lien 
upon  a  particular  portion  of  the  assigned 
estate,  out  of  the  sale  of  which  he  realizes 


a  portion  of  his  claim,  is  entitled  to  his 
pro  rata  dividend  on  the  whole  claim,  out 
of  the  general  assets  in  the  hands  of  the 
assignee,  to  an  amount  sufficient  to  pay 
the  balance  of  his  demand  in  full :  Keim's 
Ap.,  27  Penn.  St.  43  ;  Morris  v.  Olwine,  22 
Id.  441 ;  and  the  better  opinion  seems  to 
be,  that  a  bona  fide  confession  of  judgment, 
anterior  to  an  assignment,  will  be  good: 
Hutchinson  v.  McClure,  1  Am.  L.  Reg.  170  ; 
s.  c.  20  Penn.  St.  63,  overruling  Sumner's 
Ap.,  16  Id.  174;  Blakey's  Ap.,  7  Id.  450; 
though  the  contrary  was  held  in  Towar  v. 
Barrington,  Brightly  252,  and  Worman  v. 
Wolfersberger's  Exrs.,  19  Penn.  St.  63 ; 
the  authority  of  which  latter  decision, 
however,  fell  with  Sumner's  Appeal,  on 
which  it  stood ;  but,  anterior  to  the  Act 
of  the  Legislature  of  1843,  and  under  the 
Act  of  1836,  preferences  were  allowed,  for 
that  act  did  not  forbid  preferences  in  an 
assignment.  See  cases  above  cited,  and 
Hower  v.  Geeseamen,  17  S.  &  R.  251; 
Thomas  v.  Jenks,  5  Rawle  224;  Henessy 
V.  Western  Bank,  6  W.  &  S.  301.  It  is  not, 
therefore,  surprising,  that  under  the  Act 
of  1836,  it  should  have  been  held,  that 
when  a  debtor  made  an  assignment  for  the 
benefit  of  creditors,  he  could  stipulate  that 
it  should  only  operate  for  the  benefit  of 
those  creditors  who  should  sign  a  release : 
Livingston  v.  Bell,  3  Watts  198  ;  Henessy 
V.  Western  Bank,  6  W.  &  S.  301 ;  though 
even  under  that  act,  and  previous  thereto, 
such  a  stipulation  was  not  allowed  in  case 
of  a  partial  assignment  in  trust  for  the 
benefit  of  creditors ;  at  least,  it  was  held 


123 


OF    CHOSES    IN   ACTION. 


by  the  law  in  cases  of  bankruptcy,  where  it  is  carried  on  under  judicial 
sanction,  the  law  considered  that  such  an  assignment  of  the  whole  estate 


that  such  a  stipuhitiou  in  a  partial  assign- 
ment, would  result  in  a  reservation  of  a 
portion  of  the  debtor's  property,  which 
would  render  the  assignment  void: 
McAllister  v.  Marshall,  6  Binn.  338 ; 
McClurg  I'.  Lecky,  3  Penna.  R.  91  ;  Irwin 
V  Kean,  3  Whart.  347  ;  Boker  v.  Crook- 
shank,  8  Leg.  Int.  82  ;  Johns  v.  Bolton, 
12  Penn.  St.  339 ;  In  re  Walton,  4  Id.  430 ; 
Weber  v.  Samuel,  1  Id.  499 ;  but  it  is  per- 
haps a  matter  of  some  astonishment,  that 
such  stipulations  should  have  been  held 
valid  under  the  Act  of  1843 :  Lea's  Ap.,  9 
Penn.  St  504 ;  for,  as  such  a  stipulation 
would  tend  to  work  inequality  amongst 
the  creditors,  if  they  did  not  all  join  in 
executing  the  release,  it  would  necessarily 
operate  antagonistically  to  the  Act  of 
1843,  which  by  its  enactments  requires, 
that  the  property  should  be  distributed 
equally.  This  decision,  however,  did  not 
long  embarrass  the  courts,  for  by  the  Act 
of  1849,  stipulations  in  assignments  in 
trust  for  the  benefit  of  creditors,  that  they 
should  only  operate  for  the  benefit  of 
those  creditors  who  should  sign  a  release, 
were  prohibited,  and  it  was  enacted,  that 
any  such  assignment  shall  be  taken  as  a 
preference  in  favor  of  such  creditors,  and 
be  void,  and  the  assignment  be  held  and 
construed  to  inure  to  the  benefit  of  all  the 
creditors,  in  proportion  to  their  respec- 
tive demands. 

Where  there  is  an  assignment  in  trust 
for  the  benefit  of  creditors  generally,  and 
there  are  both  partnership  and  individual 
creditors,  and  partnership  and  individual 
property,  it  seems  to  be  pretty  conclusively 
decided,  that  the  partnership  property  will 
be  applied  to  the  partnership  creditors, 
and  the  individual  or  separate  property  to 
the  separate  creditors :  Andress  v.  Miller, 
15  Penn.  St.  316;  Singizer's  Ap.,  28  Id. 
525;  Walker  v.  Eyth,  25  Id.  21T;  and  if 
either  fund  is  insufficient,  the  balance  of 
the  fund  not  exhausted,  is  to  be  paid  to 
those  separate  or  partnership  creditors, 
who  have  not  been  paid  out  of  their  own 


fund:  Honseal's  Ap.,  45  Penn.  St.  487! 
Black's  Ap.,  44  Id.  508  ;  Andress  v.  Miller, 
15  Id.  316;  it  has  been  held,  also,  that  an 
assignment  of  partnership  property  to  pay 
partnership  creditors  only,  and  the  surplus 
to  the  assignors,  is  valid  :  Ilubler  v.  Water- 
man, 33  Penn.  St.  415.  And  see  Heckman 
V.  Messenger,  Leg.  Int.  Jan.  5,  1866,  p. 
4,  49  Penn.  St.  466,  a  recent  decision  of 
the  Supreme  Court  on  this  point.  But  see 
Bell  V.  Newman,  5  S.  &  R.  78. 

A  peculiar  instance  of  the  application  of 
partnership  assets  to  partnership  creditors, 
under  an  assignment  in  trust,  occurred  in 
the  case  of  Baker's  Ap.,  21  Penn.  St.  77. 
The  facts  of  that  case  were  these.  A  firm 
consisted  of  five  brothers.  Two  of  them 
retired  from  the  firm,  disposing  of  their 
interest  in  the  partnership  estate  and  effects 
to  the  other  three,  the  latter  agreeing  to 
pay  the  debts  of  the  firm,  and  exonerate 
and  defend  the  assignors  from  all  obliga- 
tion to  pay  any  part  of  the  same.  After 
some  time,  one  of  the  remaining  three  sold 
his  interest  in  the  partnership  property  to 
one  of  the  remaining  two  partners,  said  to 
be  without  the  approbation  of  his  co- 
partner. The  two  remaining  partners 
after  contracting  debts,  executed  an  as- 
signment of  their  partnership  property,  by 
the  terms  of  the  assignment  it  being  ex- 
pressly to  pay  the  creditors  of  the  last 
firm,  composed  of  the  two  partners:  It 
was  held,  that  the  creditors  of  the  first  two 
firms  had  no  right  to  claim  any  portion  of 
the  fund  last  assigned,  but  that  the  same 
was  distributable  among  the  creditors  of 
the  last  firm. 

In  connection  with  this  subject  it  may 
be  remarked,  that  it  has  been  held,  that  a 
judgment  confessed  to  a  trustee  for  the 
benefit  of  some  of  the  creditors  of  the 
debtor,  is  not  an  assignment  in  trust  for 
the  benefit  of  creditors  :  Guy  v.  Mcllree, 
28  Penn.  St.  92  ;  Breading  v.  Boggs,  20 
Id.  37.  See  also  Towar  v.  Barrington, 
Brightly  253. 

That  assignments   in  trust  for  the  bene- 


OF   DEBTS.  123 

of  the  debtor  was  an  act  of  bankruptcy,  and  as  such  void,  if  there  were 
any  creditor  or  creditors  who  had  not  concurred  in  it  of  suflBcient  amount 
to  sue  out  a  petition  for  adjudication  of  bankruptcy.(p)  And  now  the 
Bankruptcy  Act,  1869,((/)  has  expressly  made  the  following  act,  amongst 
others,  an  act  of  bankruptcy,  viz.,  that  the  debtor  has,  in  England  or 
elsewhere,  made  a  conveyance  or  assignment  of  his  property  to  a  trustee 
or  trustees  for  the  benefit  of  his  creditors  generally.^  An  exception  to 
this  rule  was  formerly  made,  if  a  petition  for  adjudication  of  bankruptcy 
did  not  issue  within  three  calendar  months  from  the  execution  of  such  a 
deed  by  any  trader,  provided  the  deed  were  executed  by  every  trustee 
within  fifteen  days  after  the  execution  thereof  by  the  trader,  and  that 
the  execution  by  such  trader  and  by  every  *such  trustee  were  r*i94-i 
attested  by  an  attorney  or  solicitor ;  and  provided  that  notice 
were  given  within  one  month  after  the  execution  thereof  by  such  trader 
in  the  London  Gazette  and  two  London  daily  newspapers,  if  he  resided 
in  London  or  within  forty  miles  of  it ;  or  in  the  London  Gazette,  one 
London  daily  newspaper,  and  one  provincial  newspaper  published  near 
to  such  trader's  residence,  if  he  did  not  reside  within  forty  miles  of  Lon- 
don, and  such  notice  was  required  to  contain  the  date  and  execution  of 
the  deed,  and  the  name  and  place  of  abode  respectively  of  every  such 
trustee  and  of  such  attorney  or  solicitor.(r)  But  every  such  deed  was 
required  to  be  registered,  as  we  have  seen,  in  the  Court  of  Bankruptcy,(s) 
and  to  be  stamped,  in  addition  to  the  ordinary  stamp  duty,  with  a  stamp 
denoting  a  duty  computed  at  the  rate  of  five  shillings  upon  every  hun- 
dred pounds,  or  fraction  of  a  hundred  pounds,  of  the  sworn  or  certified 
value  of  the  estate  or  eff"ects  comprised  in  or  to  be  collected  or  distributed 
under  such  deed  or  instrument ;  provided,  that  the  maximum  of  ad  va- 
lorem duty  payable  in  respect  of  any  such  deed  or  instrument  should  be 
two  hundred  pounds. (^)  But  these  enactments  are  now  repealed, (w)  and 
no  exception  is  admitted  to  the  rule,  that  every  conveyance  of  a  debtor's 
property  to  trustees  for  his  creditors  generally  is  an  act  of  bankruptcy. 

{p)  Tappenden  v.  Burgess,  4  East  230;  Button  v.  Morrison,  IT  Ves.  193,  199  ;  Pow- 
ell V.  Lloyd,  2  You.  &  Jerv.  372  ;  Ex  parte  Philpott,  Court  of  Review,  10  Jur.  717.  See 
post.,  the  chapter  on  Bankruptcy  of  Traders. 

{q)  Stat.  32. &  33  Vict.  c.  71,  s.  6,  par.  (1). 

(?•)  Stat.  12  &  13  Vict.  c.  106,  s.  68,  repealing  stat.  6  Geo.  IV.  c.  16,  s.  4. 

(s)  Stat.  24  &  25  Vict.  c.  134,  s.  294,  ante,  p.  122. 

{t)  Sect.  195.  (m)  Stat.  32  &  33  Vict.  c.  83. 

fit  of  creditors   are    not   contrary  to    the  creditors,  must  be  recorded  within  thirty 

spirit  of    the  Bankrupt  Act,   see  Beck  v.  days  after  execution,  in  the  county  where 

Parker,  65  Penn.  St.  272.  the  assignor  resides:    Purd.  Dig.   (1861), 

By  the  Act  of  the   24th  of  March,  1818,  p.  61. 
an  assignment  in  trust  for  the  benefit  of         ^  See^o.s^,  page  135,  note  1. 


124  OF   CIIOSES    IN   ACTION. 

The  Bankrupt  Law  Consoliilation  Act,  1849,  contained  provisions  by 
wliicli  deeds  of  arrangement  between  a  trader  and  his  creditors,  signed 
by  six-sevenths  in  number  and  value  of  those  creditors  whose  debts 
amounted  to  ten  pounds  and  upwards,  were  binding  on  all  the  credit- 
ors.(x)  These  provisions  were  repealed  *by  the  Bankruptcy 
1_  IwOj  j^^^^  1861, (?/)  which  substituted  for  them  other  enactments, 
which  a})plied  to  all  debtors,  whether  traders  or  not.  These  enactments 
have  been  themselves  repealed  by  the  Bankruptcy  Repeal  and  Insolvent 
Court  Act,  1869  •,{z)  but  as  some  knowledge  of  their  provisions  will 
for  some  time  be  practically  necessary,  it  may  be  desirable  to  state  them 
shortly.  Every  deed  between  a  debtor  and  his  creditors,  relating  to  his 
debts  or  liabilities,  and  his  release  therefrom,  or  the  distribution,  inspec- 
tion, management  and  winding-up  of  his  estate,  or  any  of  such  matters, 
was  rendered  binding  on  all  the  creditors  of  such  debtor,  provided  the 
following  conditions  were  observed,  that  is  to  say:  (1.)  A  majority  in 
number,  representing  three-fourths  in  value  of  the  creditors  of  such 
debtor,  whose  debts  respectively  amounted  to  ten  pounds  and  upwards, 
should,  before  or  after  the  execution  thereof  by  the  debtor,  have  in 
writing  assented  to  or  approved  of  such  deed  or  instrument.  (2.)  If  a 
trustee  or  trustees  were  appointed  by  such  deed  or  instrument,  such 
trustee  or  trustees  should  have  executed  the  same.  (3.)  The  execution 
of  such  deed  or  instrument  by  the  debtor  should  have  been  attested  by 
an  attorney  or  solicitor.  (4.)  Within  twenty-eight  days  from  the  execu- 
tion of  such  deed  or  instrument  by  the  debtor,  the  same  should  have 
been  produced  and  left  (having  been  first  duly  stamped)  at  the  ofiice  of 
the  Chief  Registrar,  for  the  purpose  of  being  registered.  (5.)  Together 
with  such  deed  or  instrument  there  should  have  been  delivered  to  the 
Chief  Registrar  an  affidavit  by  the  debtor,  or  some  person  able  to  depose 
thereto,  or  a  certificate  by  the  trustee  or  trustees,  that  a  majority  in 
number,  representing  three-fourths  in  value  of  the  creditors  of  the  debtor 
whose  debts  amounted  to  ten  pounds  or  upwards,  had  in  writing  assented 
r*1261  ^0 '^^  ^PP^"oved  of  such  deed  or  instrument;  '^and  also  stating 
the  amount  in  value  of  the  property  and  credits  of  the  debtor 
comprised  in  such  deed.  (6.)  Such  deed  or  instrument  should,  before 
registration,  bear  such  ordinary  and  ad  valorem  stamp  duties  as  were  by 
the  act  provided.(a)  (7.)  Immediately  on  the  execution  thereof  by  the 
debtor,  possession  of  all  the  property  comprised  therein,  of  which  the 


(z)  Stat.  12  &  13  Vict.  c.  lOG,  s.  224. 

(y)  Stat.  24  &  25  Vict.  c.  134,  s.  192.  (z)   Stat.  32  &  33  Vict.  c.  83. 

(a)  Stat.  24  &  25  Vict.  c.  134,  s.  195.     See  ante,  p.  124. 


OF   DEBTS.  126 

debtor  could  have  given  or  ordered  possession,  should  have  been  given  to 
the  trustees. (6) 

The  Bankruptcy  Amendment  Act,  1868, (c)  required  statements  to  be 
added,  containing  particulars  (1)  of  the  debts  and  liabilities  of  the  debtor, 
and  (2)  of  the  debtor's  property  and  credits.  It  also  contained  other 
provisions,  which  it  is  hardly  necessary  to  state,  as  this  act  also  has  been 
repealed  by  the  Bankruptcy  Repeal  and  Insolvent  Court  Act,  1869.(c?) 

The  statutory  form  of  conveyance  for  the  benefit  of  creditors,  pro- 
vided by  the  Bankruptcy  Act,  1861,  contained  no  release  of  the  debtor 
by  his  creditors  from  their  debts,  and  consequently  could  not  be  pleaded 
by  the  debtor  in  bar  to  an  action  by  a  creditor  for  his  debt.(e)  If,  how- 
ever, a  release  by  the  creditors  had  been  inserted  in  the  deed,  or  were 
the  necessary  effect  of  its  provisions,  it  was  pleadable  in  bar  to  an  action 
by  a  non-assenting  creditor. (/)  All  the  creditors  of  the  debtor,  and  not 
merely  those  who  executed  the  deed,  ought  to  have  been  equally  bene- 
fited by  its  provisions  •,{g)  *and  the  deed  must  not  have  contain-  r*-io7-i 
ed  any  unreasonable  stipulation,  by  which  the  non-assenting  ere- 
ditors  might  have  been  prejudiced. (A)  It  was  unreasonable  if  the  exe- 
cuting creditors  were  paid  down  a  composition,  which  the  non-assenting 
creditors  had  only  a  covenant  to  pay  ;(^)  or  even  if  the  executing  cred- 
itors had  the  benefit  of  a  covenant,  of  which  the  non-assenting  creditors 
could  not  avail  themselves. (^)  But  it  was  held  not  unreasonable  to  em- 
power the  trustees  of  the  deed  to  require  persons  claiming  to  be  creditors 

{b)  Sect.  192.  (c)  Stat.  31  &  32  Vict.  c.  104. 

(rf)  Stat.  32  &  33  Vict.  c.  83. 

(e)  Eyre  v.  Archer,  16  C.  B.  N.  S.  638  (E.  C.  L.  R.  vol.  Ill)  ;  Jones  v.  Morris,  Q.  B. 
11  Jur.  N.  S.  812  ;  Clarke  v.  Williams,  Ex.  Ch.  13  W.  R.  923  ;  34  L.  J.  Ex.  189. 

(/)  Chapman  v.  Atkinson,  4  B.  &  S.  722  (E.  C.  L.  R.  vol.  116) ;  Whitehead  v.  Por- 
ter, 5  B.  &  S.  193  (E.  C.  L.  R.  vol.  117)  ;  Garrod  v.  Simpson,  Ex.  11  Jur.  N.  S.  227; 
Wills  V.  Hacon,  5  B.  &  S.  196  (E.  C.  L.  R.  vol.  117);  Dewhirst  v.  Jones,  3  H.  &  C.  60. 

{g)  Walter  v.  Adcock,  7  H.  &  N.  541 ;  Ex  parte  Godden,  L.  J.,  32  L.  J.  Bank.  37  ; 
Dewhirst  v.  Kershaw,  1  H.  &  C.  726;  llderton  v.  Castrique,  14  C.  B.  N.  S.  99  (E.  C. 
L.  R.  vol.  108) ;  Ex  parte  Cockburn,  Re  Smith,  L.  C,  12  W.  R.  184,  673  ;  10  Jur.  N.  S. 
573  ;  Benham  v.  Broadhurst,  3  H.  &.  C.  472  ;  Chesterfield  and  Midland  Silkstone  Col- 
liery Company,  Limited,  v.  Hawkins,  3  H.  &  C.  677. 

{h)  Woods  V.  Foote,  1  H.  &  C.  841  ;  Inglebach  v.  Nicholls,  14  C.  B.  N.  S.  85  (E.  C. 
L.  R.  vol.  108) ;  Killby  v.  Wright,  18  C.  B.  N.  S.  272  (E.  C.  L.  R.  vol.  114) ;  Nicholson 
V.  Potts,  Ex.  Ch.  12  W.  R.  440. 

(i)  Ex  parte  Cockburn,  Re  Smith,  ubi  sup. 

(k)  Benham  v.  Broadhurst;  Chesterfield  and  Midland  Silkstone  Colliery  Company, 
Limited,  v.  Hawkins,  ubi  sup.  And  see  Gresty  v.  Gibson,  1  Law  Rep.  Ex.  112  ;  Reeves 
V.  Watts,  Q.  B.  12  Jur.  N.  S.  565. 


127  OF   CHOSES    IN    ACTION. 

to  verify  their  debts  or  claims  by  statutory  declaration  proved  before 
the  commissioners  of  bankruptcy,  or  otherwise  as  the  trustees  might  think 
fit.(Z)  Nor  was  it  unreasonable  to  give  the  trustees  a  discretion  as  to 
the  sale  and  management  of  the  estate,  or  power  to  sell  to  the  debtor 
himself,(//<)  or  a  discretion  as  to  the  amount  and  manner  of  payment 
of  dividends,  or  as  to  the  enforcement  of  payment  of  debts.  And  the 
value  of  securities  held  by  creditors  might  reasonably  have  been  ascer- 
tained by  valuers,  or  an  umpire  appointed  in  the  usual  way.(w)  Again, 
a  covenant  in  a  composition  deed  not  to  sue  the  debtor  for  a  limited 
r*10Gn  time  was  not  *unreasonable  ;(o)  nor  was  a  power  to  revoke  a  let- 
ter  of  license  given  to  the  debtor.(j9)  In  estimating  the  requi- 
site majority,  secured  as  well  as  unsecured  creditors  were  required  to  be 
taken  into  account. (^)'  But  this  was  altered  by  the  Bankruptcy  Amend- 
ment Act,  1868, (r)  which  required  that  the  amount  due  to  each  secured 
creditor,  after  deducting  the  value  of  his  securities  on  the  debtor's  pro- 
perty, should  alone  be  reckoned.  And  the  deed  of  composition  was  not 
required  to  provide  for  the  distribution  of  the  whole  of  the  debtor's  es- 
tate amongst  his  creditors(s)  as  was  required  by  the  corresponding 
section  of  the  Act  of  1849.(i) 

The  Bankruptcy  Act,  1869,  now  contains  the  following  provisions 
with  respect  to  composition  with  creditors  :{u) — "  The  creditors  of  a 
debtor  unable  to  pay  his  debts  may,  without  any  proceedings  in  bank- 
ruptcy, by  an  extraordinary  resolution,  resolve  that  a  composition  shall 
be  accepted  in  satisfaction  of  the  debts  due  to  them  from  the  debtor. 
An  extraordinary  resolution  of  creditors  shall  be  a  resolution  which  has 

(l)  Coles  V.  Turner,  Ex.  Ch.  1  Law  Rep.  C.  P.  373. 

(to)  Greenberg  v.  Ward,  C.  P.  12  Jur.  N.  S.  524;   1  Law  Rep.  C.  P.  585. 

(n)  Coles  V.  Turner,  ubi  gup. 

(o)  Hidson  v.  Barclay,  3  H.  &  C.  361  ;  Walker  v.  Nevill,  3  H.  &  C.  403. 

[p)  Walker  v.  Nevill,  ubi  sup. 

(q)  King  o.  Rendall,  14  C.  B.  N.  S.  721  (E.  C.  L.  R.  vol.  108) ;  Ex  parte  Godden,  1  De 
Gex,  J.  &  S.  260  ;  Turquand  v.  Moss,  17  C.  B.  N.  S.  15  (E.  C.  L.  R.  vol.  112). 

(r)  Stat  31  &  32  Vict.  c.  104,  s.  3. 

(»)  Re  Rawlings,  L.  J.,  1  De  Gex,  J.  &  S.  225  ;  9  Jur.  N.  S.  31G  ;  Ex  parte  Morgan, 
L.  C,  9  Jur.  N.  S.  559 ;  1  De  Gex,  J.  &  S.  283  ;  Clapham  v.  Atkinson,  4  B.  &  S.  722  (E. 
C.  L.  R.  vol.  116). 

(<)  Tetley  v.  Taylor,  1  E.  &  B.  521  (E.  C.  L.  R.  vol.  72) ;  Drew  v.  Collins,  6  Ex.  Rep. 
670;  March  v.  Warwick,  1  H.  &  N.  158;  Macnaught  v.  Russell,  1  Id.  611;  Irving  v. 
Gray,  3  Id.  34;  Bloomer  v.  Darkes,  C.  B.  N.  S.  165  (E.  C.  L.  R.  vol.  89);  Cruger  v. 
Dunlap,  7  H.  &  N.  525. 

(m)  Stat.  32  &  33  Vict.  c.  71,  s.  126. 

1  See  ante,  p.  123,  note  1. 


OF   DEBTS.  128 

been  passed  by  a  majority  in  number  and  three-fourths  in  value  of  the 
creditors  of  the  debtor,  assembled  at  a  general  meeting  to  be  held  in  the 
manner  prescribed,  of  which  notice  has  been  *given  in  the  pre-  r^-innn 
scribed  manner,  and  has  been  confirmed  by  a  majority  in  number  ^  "^  J 
and  value  of  the  creditors  assembled  at  a  subsequent  general  meeting,  of 
which  notice  has  been  given  in  the  prescribed  manner,  and  held  at  an 
interval  of  not  less  than  seven  days  nor  more  than  fourteen  days  from 
the  date  of  the  meeting  at  which  such  resolution  was  first  passed.  In 
calculating  a  majority  for  the  purposes  of  a  composition  under  this  sec- 
tion, creditors  whose  debts  amount  to  sums  not  exceeding  ten  pounds 
shall  be  reckoned  in  the  majority  in  value,  but  not  in  the  majority  in 
number ;  and  the  value  of  the  debts  of  secured  creditors  shall,  as  nearly 
as  circumstances  admit,  be  estimated  in  the  same  way,  and  the  same 
description  of  creditors  shall  be  entitled  to  vote  at  such  general  meetings, 
as  in  bankruptcy.  The  debtor,  unless  prevented  by  sickness  or  other 
cause  satisfactory  to  such  meetings,  shall  be  present  at  both  the  meetings 
at  which  the  extraordinary  resolution  is  passed,  and  shall  answer  any  in- 
quiries made  of  him,  and  he,  or  if  he  is  so  prevented  from  being  at  such 
meetings  some  one  on  his  behalf,  shall  produce  to  the  meetings  a  state- 
ment showing  the  whole  of  his  assets  and  debts,  and  the  names  and 
addresses  of  the  creditors  to  whom  such  debts  respectively  are  due.  The 
extraordinary  resolution,  together  with  the  statement  of  the  debtor  as  to 
his  assets  and  debts,  shall  be  presented  to  the  registrar,  and  it  shall  be 
his  duty  to  inquire  whether  such  resolution  has  been  passed  in  manner 
directed  by  this  section,  and  if  satisfied  that  it  has  been  so  passed  he 
shall  forthwith  register  the  resolution  and  statement  of  assets  and  debts, 
but  until  such  registration  has  taken  place  such  resolution  shall  be  of  no 
validity;  and  any  creditor  of  the  debtor  may  inspect  such  statement  at 
prescribed  times,  and  on  payment  of  such  fee,  if  any,  as  may  be  pre- 
scribed. The  creditors  may,  by  an  extraordinary  resolution,  add  to  or 
vary  the  provisions  of  any  compensation  previously  ^accepted  n^-.  oa-i 
by  them,  without  prejudice  to  any  persons  taking  interests  under 
such  provisions  who  do  not  assent  to  such  addition  or  variation  ;  and 
any  such  extraordinary  resolution  shall  be  presented  to  the  registrar  in 
the  same  manner  and  with  the  same  consequences  as  the  extraordinary 
resolution  by  which  the  composition  was  accepted  in  the  first  instance. 
The  provisions  of  a  composition  accepted  by  an  extraordinary  resolution 
in  pursuance  of  this  section  shall  be  binding  on  all  the  creditors  whose 
names  and  addresses,  and  the  amount  of  the  debts  due  to  whom,  are 
shown  in  the  statement  of  the  debtor,  produced  to  the  meetings  at  which 
the  resolution  has  passed,  but  shall  not  affect  or  prejudice  the  rights  of 


130  OF   CHOSES   IN   ACTION. 

any  other  creditors.  "Where  a  debt  arises  on  a  bill  of  exchange  or 
promissory  note,  if  the  debtor  is  ignorant  of  the  holder  of  any  such  bill 
of  exchange  or  promissory  note,  he  shall  be  required  to  state  the  amount 
of  such  bill  or  note,  the  date  on  Avhich  it  falls  due,  the  name  of  the  ac- 
ceptor or  person  to  whom  it  is  payable,  and  any  other  particulars  within 
his  knowledge  respecting  the  same,  and  the  insertion  of  such  particulars 
shall  be  deemed  a  sufficient  description  of  the  creditor  of  the  debtor  in 
respect  of  such  debt,  and  any  mistake  made  inadvertently  by  a  debtor  in 
the  statement  of  his  debts  may  be  corrected  after  the  prescribed  notice 
has  been  given,  with  the  consent  of  a  general  meeting  of  his  creditors. 
The  provisions  of  any  composition  made  in  pursuance  of  this  section  may 
be  enforced  by  the  court  on  a  motion  made  in  a  summary  manner  by 
any  person  interested,  and  any  disobedience  of  the  order  of  the  court 
made  on  such  motion  shall  be  deemed  to  be  a  contempt  of  court.  Rules 
of  court  may  be  made  in  relation  to  proceedings  on  the  occasion  of  the 
acceptance  of  a  composition  by  an  extraordinary  resolution  of  creditors, 
in  the  same  manner  and  to  the  same  extent  and  of  the  same  authority  as 
r*iq-|-|  ii^  respect  of  proceedings  in  *bankruptcy.  If  it  appear  to  the 
court  on  satisfactory  evidence  that  a  composition  under  this  sec- 
tion cannot,  in  consequence  of  legal  difficulties,  or  for  any  sufficient 
cause,  proceed  without  injustice  or  undue  delay  to  the  creditors  or  to  the 
debtor,  the  court  may  adjudge  the  debtor  a  bankrupt,  and  proceedings 
may  be  had  accordingly." 


*CHAPTER   IV. 

OF    BANKRUPTCY    OF    TRADERS.* 


[*132] 


Under  some  circumstances  a  debtor  is  discharged  by  law  from  his 


1  As  to  the  power   of  Congress   to  pass     cess  of  bankruptcy  at  the  instance  of  the 


bankrupt  laws,  see  Golden  v.  Prince,  3 
Wash.  C.  C.  313;  Mitchell  v.  Great  Works 
Co.,  2  Story  648  ;  Campbell,  6  Int.  R.  Rec. 
174  ;  Silverman,  4  B.  R.  173.  As  to  how 
the  constitutional  requirement  of  uniform- 
ity in  such  acts  is  complied  with,  see  Ap- 
pold,  1  B.  R.  178. 

"  Congress    passed    an    act,    April    4th, 


creditor,  was  urged  by  others  as  essential 
to  the  system,  and  that  the  provisions 
should  even  be  extended,  so  as  to  include 
corporations,  instituted  under  state  au- 
thority, for  banking,  manufacturing,  com- 
mercial, insurance,  and  trading  purposes. 
But  this  last  provision  was  objected  to  as 
most  inexpedient,  if  not  absolutely  beyond 


1800,    establishing    a   uniform    system    of  the  purview  of  the   Constitution.     It  was 

bankruptcy  throughout  the  United  States,  apprehended  that  such  a  power  would  lead 

The  act  was  limited  to  five  years,  and  from  to   infinite   abuse,   and  become  expensive 

thence  to  the  end  of  the  next  session  of  and  extremely  oppressive,  and  would  tend 

Congress;  but  the  act  was  repealed  within  to  break  up  all  the  moneyed  and  business 

that  period,  by  the  act  of  December  19th,  institutions   created  under  state  laws,  or 

1803,    and   the   system    was    not   renewed  render  the  power  of  control  of  them  most 

until  1841.  formidable  and  dangerous.    The  advocates 

"  An  effort  was  made  in  Congress,  in  the  of  the  bill  contended  that  bankruptcy  was 

spring  of  1840,  to  re-establish   a  uniform  a  general  term,  and  meant  failure,  and  was 

system  of  bankruptcy,  and  the  subject  re-  equally  applicable  to  all  persons  of  broken 

ceived  an  able  and  thorough  investigation  fortunes  ;    that  the  Constitution    Avas  not 

and    discussion,   but    Congress   could    not  intended  to  be  bound  to  the  English  system 

agree  on  the  principles  of  the  system,  and  of  bankruptcy,  and  that  Congress  had  the 

the  effort  failed.     The  bill  which  was  re-  same  power  as  the  British  Parliament,  to 

ported    and   debated,   enabled    debtors    of  extend  the  application   of  it,  and  that  it 

every  description  and  class,  to  take  advan-  might  and  ought  to  extend  it,  to  all  classes 

tage  of  it  at  their  option,  and  to  be  thereby  of  debtors  who  had  become  disabled  and 

completely  discharged  from    their   debts,  overwhelmed  in   the  peculiar   and  severe 

without  the  co-operation  or  assent  of  any  calamity  of  the   times ;    that  though  the 

creditor.     Some  of  the  members  of  Con-  assent  of  at  least  a  majority  of  the  creditors 

gress  were  opposed  to  any  bankrupt  system  to  the  debtor's  discharge,  was  deemed  by 

on  the  part   of   the   United    States,   as  it  the  New  York  Board  of  Trade,  to  be  essen- 

would  enlarge  the  powers  of  the  Federal  tial  to  the  stability  of  credit,  the  rights  of 

courts  to  a  great  extent,  and  lead  to  the  creditors,   the   claims   of  justice,   and  the 

creation  of  a  crowd  of  officers  and  agents  reputation  of  the  country,  it  was  insisted 

to   administer  it,  and   probably  to  much  upon,  as  a  compensation  for  this  omission, 

abuse    and    corruption.     They    preferred  that  the   operation   of   the  act  would   be 

that  the  administration  of  bankrupt  and  useful    to    creditors,    though    the    debtor 

insolvent   laws,   should  remain   with    the  should  be  enabled  to  obtain  the  benefit  of 

state  governments.     The  compulsory  pro-  a  discharge  without  their  consent  or  action, 


132 


OF    CIIOSES    IN    ACTION. 


debt  -svitliout  any  actual  payment,  or  without  payment  or  more  tlian  a 
part  of  it.     This  occurs  in  the  case  of  bankruptcy. 


for  it  would  put  an  end  to  the  pernicious 
practice  of  givinpj  preference  among  cred- 
itors, and  enable  the  assets  of  insolvents  to 
be  distributed  equally  among  the  cred- 
itors. 

"  The  bill  was  strongly  opposed  by  other 
members  of  Congress,  on  constitutional 
grounds,  reaching  to  the  fundamental 
principles  of  the  bill.  It  was  contended 
that  the  power  given  to  Congress,  to  es- 
tablish uniform  laws  on  the  subject  of 
bankruptcy,  was  one  incidental  to  the 
regulation  of  commerce,  and  applicable 
only  to  merchants  and  traders,  or  persons 
essentially  engaged,  in  various  ways  and 
modes,  in  trade  and  commerce.  That  the 
term  bankruptcy  was  adopted  in  the  Con- 
stitution, as  it  stood  defined  and  settled  in 
the  English  law,  where  it  had  a  clear  and 
definite  meaning ;  that  it  was  universally 
taken  and  understood  in  that  sense,  con- 
temporaneously with  the  adoption  of  the 
Constitution  ;  and  it  received  that  practical 
construction,  and  none  other,  in  the  bank- 
rupt act  of  1800 ;  that  the  English  bank- 
rupt laws  discharged  the  bankrupt  from 
his  debts  and  contracts,  and  were  coercive 
on  the  debtor,  and  put  in  action  at  the  in- 
stance of  creditors,  and  at  their  instance 
only ;  that  the  proceeding  Avas  for  the 
equal  benefit  of  all  the  creditors,  and  its 
justice  and  policy,  as  applicable  to  that 
class  of  debtors,  was  founded  on  the  pecu- 
liarly hazardous  business  of  trade  and 
commerce,  and  the  necessity  of  large 
credits  to  sustain  an  extensive  foreign  and 
domestic  trade ;  that  there  was  a  marked 
difference  between  bankrupt  and  insolvent 
laws,  in  the  jurisprudence  of  England  and 
of  America,  and  which  had  been  recog- 
nised by  the  Supreme  Court  of  the  United 
States ;  that  insolvent  laws  were  left  to 
the  cognisance  of  the  individual  states, 
each  of  which  had  its  own  system  of  in- 
solvent laws,  and  which  the  bill  before  the 
House  would  entirely  supersede,  for  it  was 
in  fact  a  general  and  sweeping  insolvent 
law ;    and   it   was   apprehended,   that  its 


operation  on  credit,  and  the  popular  sense 
of  the  legal  and  moral  obligation  of  con- 
tracts, would  be  disastrous. 

"  The  effort  to  establish  a  national  bank- 
rupt law,  was  renewed  at  the  next  session 
of  Congress,  and  was  successful.  An  act 
of  Congress  '  To  establish  a  uniform  sys-  - 
tem  of  bankruptcy  throughout  the  United 
States,'  was  passed  the  19th  of  August, 
1841.  It  was  declared  to  apply  to  all  per- 
sons whatsoever,  residing  within  the 
United  States,  who  owed  debts,  not  created 
in  consequence  of  a  defalcation  as  a  public 
officer,  or  as  executor,  administrator, 
guardian,  or  trustee,  or  while  acting  in 
any  other  fiduciary  character,  and  who 
should  by  petition  on  oath,  setting  forth  a 
list  of  their  creditors,  and  an  inventory  of 
their  property,  apply  to  the  District  Court 
for  the  benefit  of  the  act,  and  declare 
themselves  unable  to  meet  their  debts  and 
engagements.  The  act  Avas  further  de- 
clared to  apply  to  all  persons  being  mer- 
chants, or  using  the  trade  of  merchandise, 
and  all  retailers  of  merchandise,  and  all 
bankers,  factors,  brokers,  underwriters,  or 
niarine  insurers,  owing  debts  to  the 
amount  of  two  thousand  dollars ;  who 
should  be  liable  to  become  bankrupts, 
upon  petition  of  one  or  more  of  their 
creditors  to  the  amount  of  five  hundred 
dollars ;  provided  they  had  absconded,  or 
fraudulently  procured  themselves  or  their 
property,  to  be  attached  or  taken  in  exe- 
cution, or  had  fraudulently  removed,  or 
concealed,  or  assigned,  or  sold  their  pro- 
perty. The  bankrupt  when  duly  dis- 
charged, was  declared  to  be  free  from  all 
his  debts.  The  first  provision  is  a  sweep- 
ing insolvent  law,  and  applies  to  all 
debtors,  and  upon  their  own  voluntary  ap- 
plication ;  the  second  is  confined  to  mer- 
chants and  traders,  and  the  act  is  put  in 
operation  only  at  the  instance  of  the  cred- 
itors. The  numerous  details  of  the 
statute,  and  the  many  questions  which 
were  raised,  discussed^  and  decided,  in  the 
District  and  Circuit  Courts  of  the  United 


OF   BANKRUPTCY    OF   TRADERS. 


132 


The  whole  of  the  Law  of  bankruptcy  now  depends  on  the  Bankruptcy 


States,  in  the  execution  of  the  act,  cannot 
be  noticed  in  the  limited  space  allowed 
in  this  note,  nor  would  they  be  any  longer 
interesting,  since  the  entire  statute  was 
repealed  by  Congress,  on  the  3d  of  March, 
1843.  The  provision  in  the  bankrupt  act, 
which  rendered  it  a  general  insolvent  act, 
and  was  the  one  almost  exclusively  in 
operation,  gave  occasion  to  serious  doubts, 
whether  it  was  within  the  true  construc- 
tion and  purview  of  the  Constitution,  and 
it  was  that  branch  of  the  statute,  that 
brought  the  system,  and  I  think  justly, 
into  general  discredit  and  condemnation, 
and  led  to  the  repeal  of  the  law.     In  the 


Law   of   1841,   showing  its   operation  and 
effect." 

The  United  States  bankrupt  act  of  1841 
was  held  to  be  constitutional.  See  Klein 
1  How.  277. 

Prior  to  the  publication  of  the  last 
American  edition  of  this  work,  a  renewed 
attempt  was  made  to  procure  the  passage 
of  a  general  bankrupt  act,  embodying  such 
provisions,  as  to  create  a  uniform  system 
of  bankruptcy  throughout  the  United 
States.  This  effort  was  made  during  the 
session  of  Congress  of  1861-1862. 

The  proposed  act  was  framed,  upon  a 
careful  examination  and  comparison  of  the 


cases  of  Kunzler  v.  Cohans,  and  of  Sackett     provisions   of  the  EnglisU  Bankrupt  Act 


V.  Andross,  5  Hill  (N.  Y.)  317,  327,  the  con- 
stitutionality and  construction  of  the 
bankrupt  act  of  Congress  of  1841,  was 
largely  discussed,  and  it  was  held  that  the 
voluntary,  as  well  as  the  other  branch  of 
the  act,  was  constitutional,  and  applied  as 
well  to  debts  'created  before,  as  after  its 
passage.     Mr.  Justice   Bronson,  in  a  very 


which  went  into  operation  in  October, 
1861,  the  existing  insolvent  laws  of  the 
state  of  Massachusetts,  the  bankrupt  acts 
of  the  United  States,  of  1800  and  1841, 
the  insolvent  laws  of  the  state  of  New 
York,  and  other  kindred  statutes.  It  was 
thought  that  it  combined  all  the  most  sal- 
utary provisions  of  these  several  statutes. 


elaborate  opinion,  dissented  from  both  of    so  far  as  they  were  capable  of  application 

to  a  uniform  system  of  bankruptcy  in  the 
United  States.  It  provided  for  the  full 
and  unconditional  discharge  of  the  debtor 
(except  as  to  certain  fiduciary  debts),  upon 
the  surrender  of  his  entire  estate  for  dis- 


these  propositions.  And  Judge  Wells,  of 
the  United  States  District  Court  of  Mis- 
souri, in  the  case  of  Edward  Kleen,  2  N. 
Y.  Legal  Obs.  184,  after  a  very  full  con- 
sideration of  the  subject,  also  decided  that 


the   provision  in  the    act  of  Congress  of  tribution,  without   preference,   among  all 

1841,    for    the    discharge    of    a   voluntary  his    creditors,   and    upon    his    compliance 

debtor  from   his  debts  and  future  acquisi-  with  the  requirements  of  the  act.     It  pro- 

tions,  without  payment  or  assent   of  his  vided  for  the  election  of  the  assignee  in 

creditors,  was  unconstitutional."  bankruptcy   by   the    creditors,    and   gave 

The  foregoing  note,  taken  from  Kent's  them  the  supervision  of  the  manao-ement 


Commentaries,  &c.,  vol.  2,  p.  391,  n.  a, 
gives  a  general  view  of  the  provisions 
contained  in  the  repealed  bankrupt  law, 
and  its  scope  ;  but  for  a  full  consideration 
thereof,  see  "Owen  on  Bankruptcy;", 
"  The  Bankrupt  Law  of  the  United  States, 
with  a  Commentary  containing  a  full  ex- 
planation of  the  Law  of  Bankruptcy,"  pub- 
lished in  1841,  in  Philadelphia,   and  two 


and  winding  up  of  the  estate,  under  the  di- 
rection of  the  court.  It  also  permitted,  by 
provisions  analogous  to  the  French  code 
of  bankruptcy,  as  well  as  of  the  English 
law,  the  winding  up  of  bankrupts'  estates, 
at  the  option  of  three-fourths  in  value  of 
the  creditors,  by  trustees,  under  the  in- 
spection of  creditors,  in  lieu  of  the  more 
formal  proceedings   in  bankruptcy.      The 


tracts  published  in  New  York,  in  the  year  various  details  of  the  act  were  designed  to 

1842,   one   by  J.   B.  Staples,  and  entitled,  give  uniformity  and  efficiency  to  the  sys- 

"  The   General   Bankrupt  Law,"   &c.,  and  tern,  and  to  meet  the  various  exigencies  of 

the  other  by  Geo.  A.  Bicknell,  Jr.,  and  en-  its  administration,  in  the  extended  terri- 

titled,  "  A  Commentary  on   the  Bankrupt  tory  to  which  it  was  to  apply. 
12 


132 


OF    CIIOSES    IN    ACTION. 


Act,  1860,(a)-  to  make  way  for  which  all  the  previous  bankruptcy  acts 
have  been  repealed. (6)     The  former    acts  were  the  Bankruptcy  Act, 


(a)  Stat.  32  &  33  Vict.  c.  71. 


(6)  By  Stat.  32  &  33  Vict.  c.  83. 


The  project,  however,  failed  to  meet 
with  the  requisite  support,  and  the  pro- 
posed act  did  not  become  a  law. 

Repeated  efforts  have  been  made  at  sub- 
sequent sessions  of  Congress,  to  procure 
the  passage  of  a  bankrupt  bill,  but  these 
also  were  unsuccessful. 

A  bill  was  also  reported  at  the  session 
of  Congress  (1865-18G6),  containing  the 
essential  features  of  the  bill  above  referred 
to,  and  providing  for  voluntary  bankruptcy 
upon  the  petition  of  the  debtor  himself, 
and  involuntary  bankruptcy,  upon  the 
petition  of  one  or  more  of  the  creditors  of 
the  bankrupt,  under  the  regulations  therein 
prescribed ;  but  limiting  the  discharge  of 
a  debtor  to  his  first  bankruptcy,  unless 
under  a  second  bankruptcy,  his  estate  is 
sufficient  to  pay  seventy  per  cent,  of  the 
debts  proved  against  it,  or  he  obtains  the 
consent  of  three-fourths  in  value  of  his 
creditors,  or  can  prove  payment  of  all 
debts  owing  by  him  at  the  time  of  his  pre- 
vious discharge. 

For  the  law  of  Bankruptcy,  see  Hilliard 
on  Bankruptcy  and  Insolvency,  whose 
Treatise  on  these  subjects,  embodies  the 
principles  of  both  English  and  American 
decisions. 

And  as  to  the  act  of  18G7  ;  The  Bank- 
rupt Law  of  the  United  States,  1867,  with 
notes  and  decisions  by  Edwin  James ; 
Brightly's  Annotated  Bankrupt  Law; 
Bump's  Law  and  Practice  of  Bankruptcy; 
Gazzam's  Treatise  on  the  Bankrupt  Law ; 
American  and  English  Bankruptcy  Digest 
by  Gazzam ;  Rice's  Manual  of  the  Bank- 
rupt Law  ;  Avery  &  Hobbes'  Treatise. 

2  The  provisions  of  the  bills  reported  to 
Congress  at  the  sessions  18G1-62,  1865-66, 
referred  to  in  the  previous  note,  comprise 
the  most  prominent  features  of  the  exist- 
ing bankrupt  law  of  the  United  States, 
the  Act  of  March  2,  1867  (14  Statutes  at 
Large  517),  of  which  with  the  amendments 
thereto,  the  following  is  a  brief  synopsis : 


a.  Jurisdiction  in  matters  of  bankruptcy 
is  conferred  thereby  principally,  upon  the 
several  District  Courts  of  the  United  States, 
the  Supreme  Court  of  the  District  of  Colum- 
bia and  the  Supreme  Courts  of  the  several 
territories ;  the  Circuit  Courts  being  invest- 
ed with  a  general  superintendence  of  all 
cases  and  questions  arising  under  the  act, 
and  with  concurrent  jurisdiction  of  suits 
brought  by  or  against  assignees  in  bank- 
ruptcy, and  jurisdiction  on  appeal  in  equity, 
and  in  error  at  law.  For  the  assistance  of 
the  judge  of  the  District  Court,  he  is  au- 
thorized to  appoint  in  each  congressional 
district,  upon  the  nomination  and  recom- 
mendation of  the  chief  justice  of  the  Su- 
preme Court  of  the  United  States,  one  or 
more  registers  in  bankruptcy,  to  whom  is 
confided  (with  the  exception  of  contested 
matters,  the  preliminary  stages  of  the  pro- 
ceedings, and  the  granting  of  discharges), 
the  details  of  the  administration  of  the  act. 
A  register  is  not  empowered  to  commit  for 
contempt,  and  in  all  matters  where  an  issue 
of  law  is  raised  and  contested  by  any  party 
to  the  proceedings,  it  is  his  duty  to  cause 
the  same  to  be  stated  in  writing  by  the  op- 
posing parties,  and  to  adjourn  it  into  Court, 
for  decision  by  the  judge.  (In  practice, 
however,  the  register  provisionally  decides 
questions  arising  before  him,  to  which  ex- 
ceptions may  be  taken  by  parties  interest- 
ed.) The  opinion  of  the  judge  may  be 
taken  upon  any  point  or  matter  arising  in 
the  proceedings,  which  shall  be  certified 
by  the  register.  The  justices  of  the 
Supreme  Court  are  empowered  to  frame 
general  orders  for  regulating  the  practice 
and  procedure  of  the  District  Courts. 

The  act  provides  for  proceedings  in 
bankruptcy  upon  the  petition  of  a  debtor, 
viz  :  voluntary  bankruptcy,  and  upon  the 
petition  of  creditors,  viz:  involuntary 
bankruptcy. 

Any  person  residing  within  the  jurisdic- 
tion of  the    United    States,    owing    debts 


OF   BANKKUPTCY   OF   TRADERS. 


132 


1861, (c)  under  which  persons  not  in  trade  were  for  the  first  time  liable 
to  become  bankrupt,  and  the  Bankruptcy  Act  of  1849,(a!)  by  which  all 


(c)  Stat.  24  &  25  Vict.  c.  134. 


(d)  Stat.  12  &  13  Vict.  c.  106. 


provable  under  the  act,  exceeding  the 
amount  of  three  hundred  dollars,  may 
apply  by  petition  addressed  to  the  judge 
of  the  district,  in  which  he  has  resided  or 
carried  on  business  for  the  six  months 
next  immediately  preceding  the  time  of 
filing  such  petition,  or  for  the  longest 
period  during  such  six  months,  setting 
forth  his  residence,  his  inability  to  pay  all 
his  debts  in  full,  his  willingness  to  surren- 
der all  his  estate  for  the  benefit  of  his 
creditors,  and  his  desire  to  obtain  the  bene- 
fit of  the  act,  together  with  schedules  of  his 
creditors  and  assets  (and  in  case  he  be  a 
citizen  of  the  United  States  shall  take  and 
subscribe  an  oath  of  allegiance  thereto), 
shall  thereupon  be  adjudged  a  bankrupt, 
the  filing  of  such  petition  being  declared 
to  be  an  act  of  bankruptcy. 

After  such  a  petition  is  filed  if  there  be 
no  opposing  party,  it  is  generally  referred 
to  one  of  the  registers  of  the  Court,  by 
whom  a  warrant  is  issued,  directed  to  the 
marshal  of  the  district  as  messenger,  to 
publish  and  serve  notice  on  the  creditors 
of  the  bankrupt,  of  a  meeting  of  the 
creditors  to  prove  their  debts,  and  choose 
one  or  more  assignees  of  the  bankrupt's 
estate. 

b.  This  meeting  is  presided  over  by  the 
register,  the  choice  of  assignee  being  re- 
quired to  be  made  by  the  greater  part  in 
value  and  in  number  of  the  creditors,  who 
have  proved  their  debts.  If  no  choice  is 
made  by  the  creditors,  the  judge,  or  if 
there  be  no  opposing  interest,  the  register 
shall  appoint  the  assignee,  all  elections  or 
appointments  being  subject  to  the  approval 
of  the  judge.  An  assignment  is  then 
made  by  the  judge,  or  most  generally  by 
the  register,  to  the  assignee,  of  all  the 
bankrupt's  estate,  the  assignment  relating 
back  to  the  commencement  of  the  pro- 
ceedings, and  dissolving  any  attachment 
made  within  four  months  next  preceding 
the  commencement   of  said   proceedings. 


Certain  exemptions  (see  post,  page  149, 
note  1)  are  allowed  to  the  bankrupt  out 
of  his  estate,  but  with  such  exception,  all 
the  property  of  the  bankrupt  vests  in  the 
assignee,  who  is  required  to  give  notice  of 
his  appointment  by  publication,  to  collect 
the  estate,  convert  it  into  money  by  sales 
thereof,  to  be  made  on  such  terms  as  he 
may  think  most  for  the  interest  of  the 
creditors,  the  general  orders  before  referred 
to,  specifying  the  time  of  notice,  &c.,  the 
Court  making  special  orders  in  regard 
thereto,  as  the  nature  of  particular  cases 
requires. 

c.  All  debts  due  and  payable  from  the 
bankrupt  at  the  time  of  the  adjudication 
of  bankruptcy  (which  it  has  been  decided 
relates  to  the  time  of  the  filing  of  the  peti- 
tion), and  all  debts  then  existing,  but  not 
payable  until  a  future  day,  a  rebate  of  in- 
terest being  made  when  no  interest  is  pay- 
able by  the  terms  of  the  contract,  may  be 
proved  against  the  bankrupt's  estate.  This 
includes  claims  for  goods  wrongfully  taken 
and  converted,  liabilities  as  endorser,  bail, 
surety,  guarantor,  contingent  liabilities, 
claims  of  sureties  for  the  bankrupt  and  un- 
liquidated damages,  &c.  In  cases  of  mu- 
tual debts  or  mutual  credits,  set  off  is 
allowed ;  but  not  of  a  claim  not  provable, 
or  of  a  claim  purchased  by  or  transferred 
to  any  debtor  of  the  bankrupt  after  the 
filing  of  the  petition. 

d.  A  creditor  having  a  mortgage  or 
pledge  of  real  or  personal  property,  or  lien 
thereon,  is  admitted  as  a  creditor  only  for 
the  balance  of  the  debt,  after  deducting 
the  value  of  such  property,  to  be  ascer- 
tained by  agreement  with  the  assignee,  or 
by  a  sale  thereof,  to  be  made  as  the  Court 
shall  direct ;  but  the  creditor  may  release 
or  convey  his  claim  upon  such  property  to 
the  assignee,  and  then  be  admitted  to 
prove  his  whole  debt.  If  the  value  of  such 
property  exceeds  the  sum,  for  which  it  is 
security,  the  assignee  may  release  to  the 


132 


OP   CHOSES    IN   ACTION. 


the  previous  acts  "were  repealed.     Of  these  the  most  important  was  the 
statute  of  G  Geo.  IV.  c.  16,   "An  Act  to  amend  the  Laws  relating  to 


creditor  the  right  of  redemption  on  receiv- 
ing such  excess,  or  he  may  sell  the  pro- 
perty, subject  to  the  claim  of  the  creditor 
thereon.  If  the  property  is  not  so  sold,  or 
released  and  delivered  up,  the  creditor  is 
not  allowed  to  prove  any  part  of  his  debt. 
Probate  of  a  debt  is  a  waiver  of  action 
against  the  bankrupt,  and  unsatisfied  judg- 
ments are  deemed  to  be  discharged  and 
surrendered  thereby,  and  suits  at  law  by 
creditors,  whose  debts  are  provable,  may 
be  stayed. 

Probate  of  debts  may  be  made  by  deposi- 
tion taken  before  a  register  in  bankruptcy, 
or  commissioner  of  the  Circuit  Court, 
setting  forth  the  particulars  of  the  claim, 
consideration,  &c.,  as  specified  in  the  act 
and  general  orders.  If  the  creditor  is  in  a 
foreign  country,  such  deposition  may  be 
made  before  any  minister,  consul,  or  vice- 
consul  of  the  United  States.  If  the  proof 
is  satisfactory  to  the  oiEcer  before  whom 
it  may  be  made,  it  is  then  to  be  sent  to  the 
assignee,  whose  duty  it  is  to  examine  it  and 
compare  it  with  the  books  of  the  bankrupt. 

If  before  the  election  of  assignee,  the 
judge  or  register  entertain  doubts  of  the 
validity  of  any  claim,  and  that  it  ought  to 
be  investigated  by  the  assignee,  he  may 
postpone  the  proof  of  the  claim  until  the 
assignee  is  chosen. 

e.  Examination  of  the  bankrupt  upon 
matters  relating  to  the  estate  may  be  made 
at  any  time  by  the  Court,  with  or  without 
any  application ;  and  the  attendance  of 
any  other  person  as  a  witness  may  also  be 
required.  The  wife  of  the  bankrupt  may  be 
examined  as  a  witness,  and  if  she  do  not 
attend  as  directed,  the  bankrupt  shall  not 
be  entitled  to  a  discharge,  unless  he  shall 
prove  to  the  satisfaction  of  the  Court  that 
he  was  unable  to  procure  her  attendance. 
A  bankrupt  is  not  liable  to  arrest  during 
the  pendency  of  the  bankruptcy  proceed- 
ings, in  any  civil  action,  unless  it  is  founded 
on  some  claim,  from  which  the  discharge 
would  not  release  him.  (Examination  of 
the  bankrupt  and  witnesses  is  generally 


made  before  the  register,  to  whom  the  case 
is  referred.  As  to  examination  of  the  bank- 
rupt  and  witnesses   generally,   and  what 
questions  may  be  asked  them,  see  Patter- 
son, 6  Int.   Rev.  Rec.  166;  Koch,  1  B.  R. 
153;  Tanner,    Id.    59;    Judson,     Id.    82 
Leachman,    Id.    91 ;    Rosenfield,    Id.    60 
Bonesteel,  2  B.  R.  106;  Van  Tuyl,  1  B.  R 
193  ;  Levy,  6  Int.  Rev.  Rec.  134,  163  ;  Lyon 
Id.  135  ;  Carson,  2  B.  R.  41  ;  Craig,  3  Id.  26 
Bellis,  Id.   49;  O'Donohoe,   Id.   59;  Holt 
Jr.,  Id.  58  ;  Lord,  Id.  58  ;  McBrien,  Id.  90 
Lewis,  Id.  153  ;  Fay,  Id.  163  ;  Bromley,  Id 
169;  Woodward,  Id.   177;  Solis,  4  B.  R 
18  ;  Richards,  Id.  25  ;  Craig,  Id.  50  ;  Clark 
Id.    70;  Lathrop,    Id.    93;  Vetterlein,    Id 
194;  Frizelle,  5  B.  R.  119.    As  to  examina- 
tion of  bankrupt's  wife,   see  Gilbert,  3  B. 
R.  37;  Bellis,  Id.  65;  Woolford,  Id.   113; 
Vogel,  5  B.  R.  393.) 

/.  At  the  expiration  of  three  months  from 
the  date  of  the  adjudication,  or  as  much 
earlier  as  the  Court  may  direct,  the  Court, 
upon  the  request  of  the  assignee,  shall  call 
a  general  meeting  of  the  creditors,  at  which 
the  assignee  shall  make  a  report  of  his 
management  of  his  trust,  and  exhibit  an 
account  of  all  his  receipts  and  expendi- 
tures. The  majority  in  value  of  the  cred- 
itors present  determine  whether  any  and 
what  part  of  the  net  proceeds  of  the  estate 
shall  be  divided  among  the  creditors  ;  but 
unless  one-half  in  value  of  them  shall 
attend,  it  is  the  duty  of  the  assignee  so  to 
determine.  If  a  dividend  is  declared,  notice 
thereof  is  required  to  be  sent  to  each 
creditor,  who  is  to  be  paid  by  the  assignee, 
as  the  Court  may  direct.  At  the  expira- 
tion of  the  next  three  months,  or  earlier  if 
practicable,  a  third  meeting  of  creditors 
may  be  called,  and  another  dividend  de- 
clared. Further  meetings  may  be  called 
upon  the  order  of  the  Court. 

(Besides  the  adjustment  and  auditing  of 
the  account  of  the  assignee,  the  allowance 
or  disallowance  of  exceptions  thereto,  the 
definitive  allowance  of  proof  of  debts, 
which  is  perhaps  to  be  considered  prior  to 


OF   BANKRUPTCY   OF   TRADERS. 


132 


Bankrupts,"  which  had  been  amended  and  altered  by  various  others,(e) 
the  provisions  of  which,  with  some  alterations,  were  consolidated  in  the 
Act  of  1849. 

(e)  1  &  2  Will.  IV.  c.  56 ;  3  &  4  Will.  4,  c.  47 ;  1  &  2  Vict.  c.  110 ;  2  Vict.  c.  11 ;  2  & 
3  Vict,  c.  29 ;  5  &  6  Vict.  c.  122  ;  7  &  8  Vict.  c.  9G  ;  8  &  9  Vict.  c.  48  ;  10  &  11  Vict.  c. 
102;  11  &  12  Vict.  c.  86. 


this  time  as  only  provisionally  determined, 
a  variety  of  other  business  connected  with 
the  settlement  of  the  estate  may  be  appropri- 
ately transacted.  See  Sherwood,  1  B.  R.  74.) 

Dividends  already  declared  are  not  dis- 
turbed by  debts  subsequently  proved,  but 
creditors  proving  such  debts,  are  entitled 
to  a  dividend  equal  to  those  already  re- 
ceived by  any  other  creditors,  before  any 
further  pa3'ment  is  made  to  the  latter.  All 
creditors,  whose  claims  are  duly  proved, 
are  entitled  to  share  in  the  bankrupt's  es- 
ta.te  pro  rata ;  but  in  the  order  for  a  divi- 
dend, the  fees,  costs  and  expenses  of  bank- 
ruptcy proceedings,  debts  due  to  the  United 
States,  and  all  taxes  and  assessments  under 
the  laws  thereof;  debts  due  to  the  state  in 
which  the  proceedings  in  bankruptcy  are 
pending,  and  all  taxes  and  assessments 
under  the  laws  of  such  state;  -v^ges  due 
to  any  operative,  clerk  or  house  servant  to 
an  amount  not  exceeding  fifty  dollars,  for 
labor  performed  within  six  months  next 
preceding  the  adjudication,  and  all  debts 
due  to  any  persons,  who,  by  the  laws  of  the 
United  States,  are  or  may  be  entitled  to  a 
priority  or  preference  if  the  Bankrupt  Act 
had  not  been  passed,  are  to  be  entitled  to 
priority  or  preference,  and  to  be  first  paid 
in  full  in  the  order  stated. 

ff.  At  any  time  after  the  expiration  of 
six  months  from  the  adjudication  of  bank- 
ruptcy, or  if  no  debts  have  been  proved 
against  the  bankrupt,  or  if  no  assets  have 
come  to  the  hands  of  the  assignee,  at  any 
time  after  the  expiration  of  sixty  days,  and 
within  one  year  from  the  adjudication  of 
bankruptcy,  the  bankrupt  may  apply  to 
the  Court  for  a  discharge.  The  following 
are  grounds  of  refusal  of  discharge  :  wilful 
false  swearing  by  the  bankrupt  in  the  affi- 
davit annexed  to  the  petition,  schedules, 
or  inventory,  or  in  any  examination  in  the 


course  of  the  proceedings,  in  relation  to  any 
material  fact;  concealment  of  any  part  of 
his  estate,  or  any  books  or  writings  relating 
thereto ;  fraud  or  negligence  in  the  care, 
custody,  or  delivery  to  the  assignee,  of  pro- 
perty belonging  to  the  bankrupt  at  the 
time  of  the  presentation  of  the  petition 
and  inventory  (excepting  exempted  pro- 
perty) ;  causing,  permitting,  or  suffering 
any  loss,  waste  or  destruction  thereof; 
procuring  his  lands,  goods,  money  or 
chattels  to  be  attached,  sequestered  or 
seized  on  execution  within  four  months 
before  the  commencement  of  proceedings  ; 
destroying,  mutilating,  altering  or  falsi- 
fying since  the  passage  of  the  act,  any  of 
his  books,  documents,  papers,  writings  or 
securities,  or  being  privy  to  the  making  of 
any  false  or  fraudulent  entry,  in  any  book 
of  account  or  other  document,  with  intent 
to  defraud  his  creditors ;  removing  or 
causing  to  be  removed,  any  part  of  his  pro- 
perty from  the  district,  with  intent  to 
defraud  his  creditors  ;  giving  any  fraudu- 
lent preference  contrary  to  the  provisions 
of  the  act,  or  making  any  fraudulent  pay- 
ment, gift,  transfer,  conveyance,  or  assign- 
ment of  any  part  of  his  property  ;  or  the 
loss  of  any  part  thereof  in  gaming  ;  or  the 
admitting  a  false  and  fictitious  debt  against 
his  estate,  or  if  having  knowledge  that  any 
person  has  proved  such  false  or  fictitious 
debt,  the  omission  to  disclose  the  same  to 
his  assignee  within  one  month  after  such 
knowledge ;  or  if  a  merchant,  or  tradesman, 
the  failure  subsequently  to  the  passage  of 
the  act  to  keep  proper  books  of  account; 
procuring  directly  or  indirectly  the  assent 
of  any  creditor  to  the  discharge,  or  in- 
fluencing the  action  of  any  creditor  at  any 
stage  of  the  proceedings,  by  any  pecuniary 
consideration  or  obligation  ;  the  making, 
in  contemplation  of  becoming  bankrupt, 


132 


OF   CHOSES    IN    ACTION. 


Traders  were  defined  by  the  Act  of  1849   to  be,  all   alum  makers, 
apothecaries,    auctioneers,    bankers,    bleachers,    brokers,    brickmakers, 


any  pledge,  payment,  transfer,  assignment 
or  conveyance  of  any  part  of  his  property, 
directly  or  indirectly,  absolutely  or  condi- 
tionally, for  the  purpose  of  preferring  any 
creditor  or  person  having  a  claim  against 
him,  or  who  is  or  may  be  under  liability  for 
him,  or  for  the  purpose  of  preventing  the 
property  from  coming  into  the  hands  of  the 
assignee,  or  of  being  distributed  under  the 
act  in  satisfaction  of  his  debts  ;  conviction 
of  any  misdemeanor  under  the  act,  or  being 
guilty  of  any  fraud  whatever  contrary  to 
the  true  intent  of  the  act. 

Before  any  discharge  is  granted,  the 
bankrupt  is  required  to  take  and  subscribe 
an  oath,  to  the  effect  that  he  has  not  done, 
suffered  or  been  privy  to  any  act,  matter 
or  thing  specified  in  the  act,  as  a  ground 
for  withholding  such  discharge,  or  as  in- 
validating it  if  granted. 

A  bankrupt,  who  has  been  discharged, 
becoming  a  bankrupt  a  second  time  on  his 
own  application,  is  not  again  entitled  to  a 
discharge,  if  his  estate  is  insufficient  to 
pay  seventy  per  centum  of  the  debts  proved 
against  it,  unless  the  assent  in  writing  of 
three-fourths  in  value  of  the  creditors, 
whose  claims  have  been  proved,  is  filed  at 
or  before  the  time  of  application  for  a  dis- 
charge ;  but  this  provision  does  not  apply 
to  a  bankrupt,  who  has  paid  all  debts 
owing  by  him  at  the  time  of  any  previous 
bankruptcy,  or  who  has  been  voluntarily 
released  therefrom  by  his  creditors. 

Any  question  of  fact  raised  by  specifi- 
cations in  writing  of  grounds  of  objection 
to  the  bankrupt's  discharge,  may  be 
ordered  by  the  Court  to  be  tried  at  a 
stated  session  of  the  District  Court. 

No  debt  created  by  fraud  or  embezzle- 
ment of  the  bankrupt,  or  by  his  defalcation 
as  a  public  officer,  or  while  acting  in  any 
fiduciary  capacity,  is  discharged,  but  such 
debt  may  be  proved,  and  the  dividend  there- 
on shall  be  a  payment  on  account  thereof. 

The  discharge  of  the  bankrupt  from  any 
debt,  does  not  discharge  or  affect  any  per- 
son liable  for  the  same  debt,  with  him  as 


partner,  joint  contractor,  endorser,  surety 
or  otherwise. 

The  original  Act  of  March  2,  1867,  as 
amended  by  that  of  July  27,  1868,  provided 
that  no  discharge  should  be  granted  to  a 
debtor,  in  proceedings  commenced  subse- 
quently to  January  1,  1869,  whose  assets 
should  not  be  equal  to  fifty  per  centum  of 
the  claims  proved  against  his  estate,  upon 
which  he  was  liable  as  principal  debtor, 
unless  the  assent  in  writing  of  a  majority 
in  number  and  value  of  his  creditors,  to 
whom  he  had  become  liable  as  principal 
debtor,  and  who  had  proved  their  claims, 
was  obtained  to  such  discharge,  but  by  an 
amendment  of  Julj'  14,  1870,  the  second 
clause  (the  clause  just  referred  to)  of  the 
33d  section  of  the  provisions  of  the  original 
act  and  amendment  thereof  of  July  27, 1868^ 
were  made  inapplicable  to  all  debts  con- 
tracted prior  to  January  1st,  1869,  the 
effect  of  which  is  to  make  the  latter  class 
of  debts  dischargeable,  whether  or  not  the 
assets  be  equal  to  fifty  per  centum  of  the 
claims  proved. 

A  discharge  duly  granted  releases  (with 
the  exceptions  before  stated)  the  bank- 
rupt from  all  debts,  claims,  liabilities  and 
demands,  wliich  have  been  or  might  have 
been  proved  against  his  estate,  and  is 
pleadable  as  a  complete  bar  to  any  suit 
brought  on  such  debts,  by  a  simple  aver- 
ment that  on  the  day  of  its  date  such  dis- 
charge was  granted,  setting  the  same 
forth  verbatim ;  and  the  certificate  thereof 
is  conclusive  evidence  in  favor  of  the 
bankrupt,  of  the  fact  and  regularity  of  the 
discharge.  Any  creditor,  however,  whose 
debt  is  proved  or  provable,  may,  on  the 
ground  that  the  discharge  was  fraudu- 
lently obtained,  at  an}'  time  within  two 
years  after  the  date  thereof,  apply  to  the 
Court  which  granted  it,  to  set  aside  and 
annul  the  same.  The  Court  shall  there- 
upon cause  reasonable  notice  to  be  given 
to  the  bankrupt  of  the  application,  and 
order  him  to  appear  and  answer  the  same; 
and  if  it  is  found  that  the  fraudulent  acts 


OF   BANKRUPTCY    OF   TRADERS. 


132 


builders,  calenderers,   carpenters,   curriers,   cattle  or   sheep    salesmen, 
coach  proprietors,  cow  keepers,  dyers,  fullers,  keepers  of  inns,  taverns, 


or  any  of  them  so  set  forth  by  said  creditor 
are  proved,  and  tliat  the  creditor  had  no 
knowledge  of  the  same  until  after  the 
grantinor  of  the  discharge,  the  discharge 
of  said  bankrupt  shall  be  set  aside  ;  but  if 
the  acts  alleged  are  not  proved,  or  are 
found  to  have  been  known  to  the  creditor 
before  the  granting  of  the  discharge,  judg- 
ment shall  be  rendered  in  favor  of  the 
bankrupt,  and  the  validity  of  his  dis- 
charge will  not  be  affected. 

h.  If  a  person,  being  insolvent,  or  in  con- 
templation of  insolvency,  within  four 
months  before  the  filing  of  a  petition  by 
or  against  him,  with  a  view  to  give  a  pre- 
ference to  any  creditor  or  person  having 
a  claim  against  him,  or  who  is  under  any 
liability  for  him,  procures  any  part  of  his 
property  to  be  attached,  sequestered  or 
seized  in  execution,  or  makes  any  pay- 
ment, pledge,  assignment,  transfer  or  con- 
veyance of  any  part  of  his  property, 
directly  or  indirectly,  absolutely  or  condi- 
tionally, the  person  receiving  such  pay- 
ment, pledge,  assignment,  transfer  or  con- 
veyance, or  to  be  benefited  thereby,  or  by 
such  attachment,  having  reasonable  cause 
to  believe  such  person  is  insolvent,  and 
that  such  attachment,  payment,  pledge, 
assignment  or  conveyance  is  made  in 
fraud  of  the  provisions  of  the  act,  the 
same  shall  be  void,  and  the  assignee  may 
recover  the  property  or  the  value  of  it 
from  the  person  so  receiving  it,  or  so  to 
be  benefited ;  and  if  any  person,  being 
insolvent,  or  in  contemplation  of  insol- 
vency or  bankruptcy,  within  six  months 
before  the  filing  of  the  petition  by  or 
against  him,  makes  any  payment,  sale,  as- 
signment, transfer,  conveyance  or  other 
disposition  of  any  part  of  his  property  to 
any  person,  who  then  has  reasonable 
cause  to  believe  him  to  be  insolvent,  or  to 
be  acting  in  contemplation  of  insolvency, 
and  that  such  payment,  sale,  assignment, 
transfer  or  other  conveyance  is  made  with 
the  view  to  prevent  his  property  from 
coming  to  his  assignee  in  bankruptcy,  or 


to  prevent  the  same  from  being  distributed 
under  the  act,  or  to  defeat  the  object  of, 
or  in  any  way  impair,  hinder,  impede  or 
delay  the  operation  and  effect  of,  or  to 
evade  any  of  the  provisions  of  the  act,  the 
sale,  assignment,  transfer  or  conveyance 
shall  be  void,  and  the  assignee  may  reco- 
ver the  property  or  the  value  thereof  as 
assets  of  the  bankrupt ;  and  if  such  sale, 
transfer  or  conveyance,  is  not  made  in  the 
usual  and  ordinary  course  of  business  of 
the  debtor,  the  fact  shall  be  prima  facie 
evidence  of  fraud. 

Contracts  for  withdrawal  of  opposition 
to  the  bankrupt's  discharge  are  rendered 
void,  and  the  penalty  for  entering  into 
such  a  contract  by  any  creditor,  is  a  for- 
feiture of  all  share  in  the  estate,  and  double 
the  value  of  the  money,  goods,  chattels  or 
securities  so  obtained,  to  be  recovered  by 
the  assignee  for  the  benefit  of  the  estate. 

i.  Partnerships  may  be  adjudged  bank- 
rupt on  the  petition  of  all  the  partners,  or 
any  one  of  them,  as  well  as  upon  a  credit- 
or's petition,  the  proceedings  being  the 
same  as  in  individual  bankruptcies,  ex- 
cept that  the  joint  stock  or  property  must 
be  kept  separate  by  the  assignee  (who  is 
to  be  chosen  by  the  partnership  creditors,) 
from  the  separate  estate  of  each  partner; 
the  joint  estate  being  first  applied  to  the 
pa3'ment  of  the  partnership  debts,  and  the 
separate  estates,  first  to  the  payment  of  the 
respective  separate  creditors ;  and  if 
there  be  any  surplus  of  joint  estate,  it 
shall  be  added,  according  to  the  respective 
interest  of  the  partners,  to  their  respective 
separate  estates,  and  any  surplus  of  sepa- 
rate estate  to  the  joint  estate,  the  discharge 
to  be  granted  to  each  partner  the  same  as 
if  the  proceedings  had  been  against  him 
alone.  If  copartners  reside  in  different 
districts,  the  Court  in  which  the  petition 
is  first  filed  retains  exclusive  jurisdiction 
over  the  case. 

j.  The  provisions  of  the  act  also  apply 
to  all  moneyed,  business  or  commercial 
corporations  and  joint  stock   companies, 


132 


OF   CHOSES    IN   ACTION. 


hotels  or  coffee  houses,   lime  burners,  livery    stable   keepers,    market 

*gardeners,  millers,  packers,   printers,  shipowners,  shipwrights, 

•-       '  -'    victuallers,  warehousemen,  wharfingers,  scriveners  receiving  other 


upon  the  petition  of  any  officer  of  such 
corporation,  duly  authorized  by  vote  of 
the  majority  of  the  corporators,  at  any 
legal  meeting  called  for  the  purpose,  or 
upon  the  petition  of  a  creditor,  and  the 
like  proceedings  may  be  had  as  in  the 
bankruptcy  of  natural  persons,  but  no 
allowance  or  discharge  shall  be  granted 
to  such  corjjoratious,  or  any  officer  or 
member  thereof. 

k.  The  act  then  proceeds  to  set  forth  the 
following  acts  of  bankruptcy,  for  the  com- 
mission of  which,  any  person  residing  and 
owing  debts  as  before  set  forth,  (in  regard 
to  voluntary  applications,)  may,  upon  the 
petition  of  one  or  more  of  his  creditors, 
the  aggregate  of  whose  debts  provable 
under  the  act  amounts  to  at  least  two  hun- 
dred and  fifty  dollars,  provided  such  peti- 
tion is  brought  within  six  months  after 
the  act  of  bankruptcy  shall  have  been 
committed,  be  declared  bankrupt,  viz  : 

Departing,  after  the  passage  of  the  act, 
from  the  state,district  or  territory,  of  which 
he  is  an  inhabitant  with  intent  to  defraud  his 
creditors ;  or  when  absent  with  such  intent, 
remaining  absent,  and  concealing  himself 
to  avoid  legal  process  in  any  action  for 
the  recovery  of  a  debt  or  demand  provable 
under  the  act ;  or  concealing  or  removing  of 
any  of  his  property,  to  avoid  its  being 
attached,  taken  or  sequestered  on  legal 
process ;  or  making  any  assignment,  gift, 
sale,  conveyance  or  transfer  of  his  estate, 
property,  rights  or  credits,  either  within 
the  United  States  or  elsewhere,  with  intent 
to  delay,  defraud,  or  hinder  his  creditors  ; 
or  the  being  arrested  and  held  in  custody, 
under  or  by  virtue  of  mesne  process,  or  exe- 
cution, issued  out  of  any  court  of  any  state, 
district  or  territory,  within  which  such 
debtor  resides,  or  has  property,  founded 
upon  a  demand  in  its  nature  provable 
against  a  bankrupt's  estate  under  the  act, 
and  for  a  sum  exceeding  one  hundred  dol- 
lars, and  the  remaining  in  force  of  such 
process,  without  being  discharged  by  pay- 


ment or  in  any  other  manner  provided  by 
the  law  of  such  state,  district,  or  territory 
applicable  thereto  for  a  period  of  seven 
days  ;  or  the  being  actually  imprisoned  for 
more  than  seven  days  in  a  civil  action 
founded  on  contract,  for  the  sum  of  one 
hundred  dollars  or  upwards;  or  when 
being  bankrupt  or  insolvent,  or  in  con- 
templation of  bankruptcy  or  insolvency, 
the  making  of  any  payment,  gift,  grant, 
sale,  conveyance  or  transfer  of  money  or 
other  property,  estate,  rights,  or  credits  or 
the  giving  of  any  warrant  to  confess  judg- 
ment ;  or  the  procuring  or  suffering  of  his 
property  to  be  taken  on  legal  process, 
with  intent  to  give  a  preference  to  one  or 
more  of  his  creditors,  or  to  any  person  or 
persons,  who  are  or  may  be  liable  for  him 
as"  endorsers,  bail,  sureties  or  otherwise) 
or  with  the  intent  by  such  disposition  of 
his  property  to  defeat  or  delay  the  opera- 
tion of  the  act;  or  (by  amendment  of  July 
14,  1870)  if  a  banker,  broker,  merchant, 
trader,  manufacturer  or  miner,  the  fraudu- 
lent stoppage  of  payment,  or  the  stoppage 
or  suspension  and  the  nonresumption  of 
payment  of  his  commercial  paper  within  a 
period  of  fourteen  days. 

(As  to  what  is  commercial  paper  in  this 
connection,  see  Shea,  3  B.  R.  46 ;  Lowen- 
stein,  2  Id.  99 ;  Hollis,  3  Id.  82  ;  Innes  v. 
Carpenter,  4  Id.  i39.  As  to  suspension  of 
payment  thereof,  see  Thompson,  3  B.  R. 
45  ;  Brown,  4  Id.  188  ;  Massachusetts  Brick 
Co.,  5  Id.  408.) 

Upon  the  filing  of  a  petition  as  afore- 
said, the  court  directs  an  order  to  show 
cause,  to  be  served  on  the  debtor,  why  the 
prayer  of  the  petition  should  not  be  grant- 
ed, at  a  time  to  be  specified  in  the  order, 
not  less  than  five  days  from  the  service 
thereof.  The  court  may  also  at  this  stage 
of  the  proceedings  by  injunction  restrain 
the  debtor,  or  any  other  person,  from  mak- 
ing any  transfer  or  disposition  of  any 
part  of  the  debtor's  property,  and  if  there 
is  probable  cause  for  believing   that  the 


OF   BANKRUPTCY   OF   TRADERS. 


133 


men's  moneys  or  estates  into  their  trust  or  custody,  persons  insuring 
against  perils  of  the  sea,  and  all  persons  using  the  trade  of  merchandise 
by  way  of  bargaining,  exchange,  bartering,  commission,  consignment,  or 
otherwise  in  gross  or  by  retail,  and  all  persons  who  either  for  themselves, 
or  as  agents  or  factors  for  others,  seek  their  living  by  buying  or  selling, 
or  by  buying  and  letting  for  hire,  or  by  the  workmanship  of  goods  or 
commodities.'  But  no  farmer,  grazier,  common  laborer,  or  workman 
for  hire,  receiver-general  of  the  taxes,  or  member  of  or  subscriber  to  any 
incorporated  commercial  or  trading  companies  established  by  charter  or 
act  of  parliament,  was  to  be  deemed  as  such  a  trader  liable  to  become 
bankrupt.(/)  And  this  enumeration  has  been  repeated  in  the  Bank- 
ruptcy Act,  1869,  with  the  addition  of  sharebrokers,  stockbrokers  and 
stockjobbers. (^)  An  attorney  or  solicitor,  as  such,  is  not  a  trader 
within  the  bankrupt  law  ;  but  if  he  is  in  the  habit  of  receiving  his 
clients'  money  into  his  own  hands  and  investing  it  for  them,  and  charg- 
ing a  compensation  for  so  doing,  in  addition  to  his  charges  for  other  pro- 

(/)  Stat.  12  &  13  Vict.  c.  106,  s.  66.         (ff)  Stat.  32  &  33  Vict.  c.  71,  Schedule  1. 


debtor  is  about  to  leave  the  district,  or  re- 
move or  cause  his  goods  to  be  removed, 
may  issue  a  warrant  for  arrest  of  the 
banlirupt,  and  provisional  seizure  of  his 
estate.  If  proper  service  of  the  order  to 
show  cause  has  been  made,  as  may  have 
been  required  thereby,  the  court  shall  pro- 
ceed summarily  to  hear  the  allegations  of 
the  petitioner  and  debtor,  and  if  the  debtor 
demand  it  in  writing,  may  order  a  trial 
by  jury  to  ascertain  the  fact  of  the  alleged 
bankruptcy.  If  the  facts  set  forth  in  the 
petition  are  found  not  to  be  true,  the  pro- 
ceedings will  be  dismissed;  if  proved,  or 
in  default  of  appearance  by  the  debtor, 
the  court  will  adjudge  him  to  be  a  bank- 
rupt. 

(The  case  is  then  generally  referred  to 
a  register  in  bankruptcy,  and  the  pro- 
ceedings are  the  same  as  in  a  case  of  vol- 
untary bankruptcy,  the  bankrupt  being 
required  to  furnish  schedules  in  the  same 
manner  as  if  he  had  proceeded  volun- 
tarily). 

I.  The  act  also  provides  for  the  settlement 
of  the  estate  by  trustees,  if  three-fourths 
in  value  of  the  creditors,  whose  claims 
have  been  proved,  shall  so  resolve  at  the 


first  meeting,  or  at  any  meeting  specially 
called  for  that  purpose — the  creditors  nom- 
inating the  trustees,  who  are  to  act  un- 
der the  direction  of  a  committee  of  the 
creditors.  Such  an  arrangement  is  en- 
tirely subject  to  the  approval  of  the  court. 
If  approved,  the  trustees  become  vested 
with  the  rights  and  powers  of  assignees, 
the  proceedings  being  still  considered 
proceedings  in  bankruptcy,  the  bankrupt 
being  entitled  to  apply  for  his  discharge 
in  the  same  manner  as  if  no  such  resolu- 
tion had  been  passed. 

The  act  then  proceeds  to  set  forth  cer- 
tain misdemeanors  in  relation  to  bank- 
ruptcy (as  to  which  see  U.  S.  v.  Prescott, 
4  B.  R.  29  ;  U.  S.  v.  Geary,  Id.  115),  and  pre- 
scribes the  fees  and  costs  in  the  proceedings. 

1  The  bankrupt  act  of  the  United  States 
applies,  as  it  will  have  been  seen,  to  all 
debtors  without  regard  to  the  fact  of  their 
being  traders  or  not,  but  the  term  trader 
is  used  therein  in  certain  connections  (see 
ante  page  132,  note  2  ff,  k),  and  has  been 
held  to  mean  any  person,  who  upon  the 
principles  of  commercial  law  may  be  in- 
cluded within  that  term:  Cowles,  1  B.R.42. 
See  also  Rogers,  3  Id.  139. 


133 


OF   CIIOSES    IN    ACTION. 


fessional  business,  he  will  be  liable  to  become  bankrupt  as  a  scrivener 
receiving  other  men's  moneys  into  his  trust.(A)  An  alien  or  denizen  is 
within  the  bankrupt  law  ;  *  and  so  is  a  married  woman  carrying  on  trade 
for  lier  separate  use  by  the  custom  of  London, (i)^  or  whilst  her  husband 
is  undergoing  sentence  of  transportation. (A:)  But  an  infant  under  the 
age  of  twenty-one  years  cannot  be  a  bankrupt,  because  by  the  law  of 
P^-jqi-i  England  he  cannot  be  *made  liable  on  contracts  entered  into  by 
him  in  the  course  of  trade.(?) 

A  person  within  the  bankrupt  laws  becomes  bankrupt  by  committing 
an  act  of  bankruptcy.  The  following  acts,  if  done  with  intent  to  defeat 
or  delay  the  creditors  of  a  trader,  were  acts  of  bankruptcy  within  the  Act 
of  1849,  namely,  if  any  such  trader  should  depart  this  realm,  or  being 
out  of  this  realm  should  remain  abroad,  or  depart  from  his  dwelling- 
house,  or  otherwise  absent  himself,  or  begin  to  keep  his  house,  or  sufier 
himself  to  be  arrested  or  taken  in  execution  for  any  debt  not  due,  or 
yield  himself  to  prison,  or  suffer  himself  to  be  outlawed,  or  procure  him- 
self to  be  arrested  or  taken  in  execution,  or  his  goods,  moneys  or  chat- 
tels to  be  attached,  sequestered  or  taken  in  execution,^  or  make  or  cause 

{h)  Malkin  v.  Adams,  2  Rose  28 ;  Ex  parte  Bath,  Mont.  82,  84,  where  the  cases  are 
collected.  See  also  Wilkinson  v.  Candlish,  5  Ex.  Rep.  91,  97  ;  Ex  parte  Dufaur,  2  De 
Gex,  M.  &  G.  246. 

(t)  Ex  parte  Carrington,  1  Atk.  206. 

\k)  Ex  parte  Franks,  7  Bing.  762  (E.  C.  L.  R.  vol.  20)  ;    1  M.  &  S.  1. 

{I)  Belton  V.  Hodges,  9  Bing.  365,  370  (E.  C.  L.  R.  vol.  23). 


1  Goodfellow,  3  B.  R.  114. 

'  In  the  United  States  this  would  depend 
on  her  ability  to  make  contracts,  which  is 
determinable  only  by  the  laws  ol  the  re- 
spective states.  See  Howland,  2  B.  R.  114; 
Russell  V.  Russell,  3  Id.  39  ;  Graham  v. 
Stark,  3  Id.  92  ;  Slichter,  2  Id.  107. 

'  See  ante,  page  132,  note  2  k. 

When  a  firm  is  insolvent,  it  is  an  act  of 
bankruptcy  foramemberthereoftosufferits 
property  to  be  taken  on  legal  process,  Avith 
intent  to  give  a  preference  to  a  creditor : 
Black,  1  B.  R.  81.  See  also  Kohlsaat  v. 
Hoguet,  5  B.  R.  159  ;  Haskell  r.  Ingalls,  Id. 
205;  Wilsony. City  BankofSt. Paul, Id.  270. 
Confession  of  judgment  by  an  insolvent, 
if  the  intent  be  to  give  a  preference,  is  an 
act  of  bankruptcy  without  regard  to  any 
question  of  fraud  :  Sutherland,  1  B.  R.  140 ; 
Fitch,  2  Id.  164.     But  in  deciding  whether 


the  giving  of  a  warrant  to  confess  judg- 
ment is  an  act  of  bankruptcy,  the  charac- 
ter of  the  debtor's  business  may  be  taken 
into  consideration  :  Leeds,  1  B.  R.  138.  An 
insolvent  debtor  commits  an  act  of  bank- 
ruptcy, by  confessing  a  judgment  and 
allowing  his  property  to  be  taken  in  exe- 
cution issued  thereon,  with  intent  to  give 
a  preference  :  Craft,  1  B.  R.  89.  See  also 
Vogle  V.  Lathrop,  4  Id.  146  ;  Hood  v.  Kar- 
per,  28  Leg.  Int.  340 ;  s.  c.  5  B.  R.  358.  But 
it  has  been  held  that,  suffering  a  sale  to 
take  place  from  inability  to  resist,  is  not 
an  act  of  bankruptcy,  though  the  effect 
be  to  give  a  preference  :  Rankin  v.  F.  A. 
&  G.  C.  Railroad  Co.,  1  B.  R.  196  ;  Wright 
V.  Filley,  4  Id.  197.  But  the  weight  of 
authority  does  not  seem  to  sustain  these  . 
last  mentioned  cases,  for  it  has  been  held 
that    mere   sufferance    of  property  to    be 


OF    BANKRUPTCY   OF   TRADERS. 


13i 


to  be  made,  either  within  this  realm  or  elsewhere,  any  fraudulent  grant 
or  conveyance  of  any  of  his  lands,  tenements,  goods  or  chattels,  or  make 
or  cause  to  be  made  any  fraudulent  surrender  of  any  of  his  copyhold 
lands  or  tenements,  or  make  or  cause  to  be  made  any  fraudulent  gift, 
delivery  or  transfer  of  any  of  his  goods  or  chattels.(w)  It  was  also  an 
act  of  bankruptcy  for  a  trader  to  lie  in  prison  for  debt  for  fourteen  days, 
or,  having  been  committed  or  detained  for  debt,  to  escape  out  of  prison 
or  custody.'  But  the  Bankruptcy  Act,  1861,  provided  that  no  debtor 
should  be  adjudged  bankrupt  on  the  ground  of  having  lain  in  prison  as 
aforesaid,  unless,  having  been  summoned,  he  should  not  offer  such 
security  for  the  debt  in  respect  of  which  he  was  imprisoned  or  detained 
as  the  commissioner  or  registrar,  whose  duty  it  would  otherwise  be  to 
*adjudicate,  should  deem  reasonably  sufficient. (w)  The  act  for 
the  abolition  of  imprisonment  for  debt(o)  has  now  rendered 
this  provision  unnecessary.  And  the  Bankruptcy  Act,  1869, (/>)  has 
summed  up  the  above-mentioned  acts  of  bankruptcy  in  the  following 
terms  : — 


[*135] 


(ffi)  Stat.  12  &  13  Vict.  c.  106,  s.  67  ;  Ex  parte  Bland,  6  De  Gex,  M.  &  G.  151  ■  John- 
son V.  Fesenmeyer,  25  Beav.  88;  3  De  Gex  &  Jones  13;  Pennell  v.  Reynolds,  11  C.  B. 
N.  S.  709  (E.  C.  L.  R.  vol.  104)  ;  Ex  parte  Wensley,  1  De  Gex,  J.  &  S.  273  ;  Topping  v. 
Keysell,  16  C.  B.  N.  S.  258  (E.  C.  L.  R.  vol.  Ill)  ;  Young  v.  Fletcher,  3  H.  &  C. 
732. 

(n)  Stat.  24  &  25  Vict.  c.  134,  s.  71.  (o)  Stat.  32  &  33  Vict.  c.  62. 

Ip)  Stat.  32  &  33  Vict.  c.  71,  s.  6. 


taken  on  legal  process  by  an  insolvent 
debtor,  by  refraining  from  going  into  vol- 
untary bankruptcy,  is  an  act  of  bank- 
ruptcy :  Dibblee,  2  B.  R.  185  ;  Wells,  3  Id. 
95 ;  Davidson,  Id.  106 ;  Campbell  v.  Trader's 
National  Bank,  Id.  124 ;  Smith  v.  Bu- 
chanan, 4  Id.  133.  The  taking  of  pro- 
perty by  a  receiver  appointed  by  a  state 
Court,  is  taking  under  legal  process  veithin 
the  meaning  of  section  39  of  the  bankrupt 
act:  Clark  &  Bininger,  3  B.  R.  99  ;  s.  c.  4 
Id.  77. 

1  See  ante,  page  132,  note  2  k. 
Where  adebtor  was  arrested  on  mesne  pro- 
cess of  a  state  Court,  uponadebt  of  overone 
hundred  dollars,  founded  on  contract,  and 
was  released  from  close  custody  on  bail, 
but  said  process  was  not  discharged 
within  seven  days,  the  said  debtor  not 
having  been  actually  imprisoned  for  more 


than  seven  days  on  said  order  of  arrest, 
was  held  not  to  have  committed  an  act  of 
bankruptcy,  the  bankrupt  act  requiring 
that  there  should  have  been  actual  im- 
prisonment for  more  than  seven  days  in  a 
civil  action  founded  on  contract  to  con- 
stitute an  act  of  bankruptcy ;  an  action 
founded  on  any  demand  in  its  nature 
provable  against  a  bankrupt's  estate  (in 
which  the  merely  being  held  in  custody 
for  a  period  of  seven  days  constituted  an 
act  of  bankruptcy),  t)eing  held  not  to  in- 
clude a  civil  action  founded  on  contract : 
Davis,  3  B.  R.  89.  Where  it  is  proved  that 
the  bankrupt  has  been  imprisoned  but 
seven  days,  exclusive  of  the  first  day,  this 
of  itself  is  not  sufficient  to  support  an 
adjudication  of  bankruptcy:  Huntw.Pooke, 
5  B.  R.  161. 


135 


OF   CHOSES    IN    ACTION. 


(1.)  That  the  debtor  has,  in  England  or  elsewhere,  made  a  convey- 
ance or  assignment  of  his  property  to  a  trustee  or  trustees  for 
the  benefit  of  his  creditors  generally  :^ 

(2.)  That  the  debtor  has,  in  England  or  elsewhere,  made  a  fraudulent 
conveyance,  gift,  delivery,  or  transfer  of  his  property  or  of  any 
part  thereof: ^ 

(3.)  That  the  debtor  has,  with  intent  to  defeat  or  delay  his  creditors, 
done  any  of  the  following  things,  namely,  departed  out  of  Eng- 
land, or  being  out  of  England  remained  out  of  England ;  or 
being  a  trader  departed  from  his  dwelling-house,  or  otherwise 
absented  himself;  or  begun  to  keep  house;  or  suffered  himself 
to  be  outlawed. 


Most  of  the  above  acts  of  bankruptcy  have  been  such  ever  since  a 
bankrupt  was  first  defined  by  the  statute  of  Elizabeth  "  touching  orders 
for  bankrupts. "(9')  Bankruptcy  Avas  then  considered  as  a  crime,  and  the 
bankrupt  was  called  "  an  offender. "(r)  But  in  modern  times  bankruptcy 
has  been  looked  upon  as  the  proper  remedy  for  a  trader  in  embarrassed  cir- 
cumstances. He  gives  up  all  his  property  to  his  creditors,  to  be  divided 
rateably  amongst  them  ;  and,  if  his  behavior  has  been  free  from  serious 

(g)  Stat.  13  Eliz.  c.  1. 

(r)  Stat.  13  Eliz.  c.  1,  s.  10 ;  2  Black  Com.  471. 


'  See  anfe,  page  132,  note  2  k. 

A  general  assignment  for  the  benefit  of 
creditors,  made  since  the  passage  of  the 
Bankrupt  Act  of  1867,  is  an  act  of  bank- 
ruptcy :  Perry  v.  Langley,  1  B.  R.  155  ; 
Grow  V.  Ballard,  2  Id.  69  ;  Goldschmidt,  3 
Id.  41 ;  Pierce  &  Holbrook,  Id.  61 ;  Smith, 
Id.  98;  Spicer  v.  Ward,  Id.  127  ;  Stubbs, 
4  Id.  124;  Barnes  v.  Rettew,  28  Leg.  Int. 
124;  (otherwiseasto  one  made  priorto  June 
1st  1867:  Wells,  6  Int.Rev.Rec.  181).  Coti- 
trh:  Langley  v.  Perry,  2  B.  R.  180  ;  (but  it 
must  be  entirely  clear  from  taint  of 
fraud:  Crawford,  2  Id.  181)  ;  Kintzing,  3 
Id.  52  ;  Sedgwick  v.  Place,  1  Id.  204. 
See  also  Arledge,  1  Id.  195;  Broome,  3 
Id.  113.  But  such  assignment  is  voidable 
only  and  not  void  :  Pierce  &  Holbrook,  3 
B.  R.  61  ;  Barnes  v.  Rettew,  28  Leg.  Int. 
124 ;  and  the  assignee  thereunder  will  be 
entitled  to  compensation  for  his  services 
rendered  in  the  premises,  and  may  set  off 
the  amount  thereof  in  an  action   by  the 


assignee  in  bankruptcy  for  the  balance  in 
his  hands  :  Catlin  v.  Foster,  3  B.  R.  134. 
Contrd:  Stubbs,  4  Id.  124.  See  also  Burk- 
holdert'.Stump,4  B.  R.  191.  Denialofthe 
bankrupt  himself  is  not  sufficient  to  dis- 
prove that  a  general  assignment  was  made 
in  contemplation  of  bankruptcy:  Brod- 
hcad,  2  B.  R.  93. 

2  See  ante,  page  132,  note  2  k. 

An  assignment  with  intent  to  hinder,  de- 
lay or  defraud  creditors,  is  an  act  of  bank- 
ruptcy, whether  the  assignor  be  solvent  or 
insolvent :  Randall,  3  B.  R.  4.  But  an  as- 
signment by  an  instrument  void  for  want 
of  a  stamp,  will  not  have  such  effect : 
Dunham,  2  B.  R.  9.  A  sale  of  a  stock  of 
goods  not  made  in  the  usual  and  ordi- 
nary course  of  the  debtor's  business  is 
^7-?OT« /aa'e  fraudulent :  Deane,  2  B.  R.  29. 
But  it  is  only  prima  facie  so,  and  the  pre- 
sumption may  be  rebutted:  Babbitt  v. 
Walbrun,  4  B.  R.  30. 


OF    BANKKUPTCY   OF   TRADERS.  135 

blame,  he  obtains  a  discharge  from  past  liabilities.  Accordingly  by  the 
Bankruptcy  Act,  1861,  *a  person  was  enabled  to  commit  an  rj^-iqftn 
act  of  bankruptcy  by  making  a  formal  declaration  of  his  inability  -^ 

to  meet  his  engagements. (s)  So  the  seizure  and  sale  of  the  goods  of  a 
trader  under  an  execution  upon  any  judgment^in  a  personal  action  for  the 
recovery  of  any  debt  or  money  demand  exceeding  fifty  pounds  was  an  act 
of  bankruptcy. (^)  The  filing  of  a  petition  by  or  against  a  debtor  in  any 
court  having  jurisdiction  for  the  relief  of  insolvent  debtors  in  insolvency 
or  bankruptcy  in  any  of  Her  Majesty's  dominions,  colonies,  or  depend- 
encies, and  the  adjudication  of  any  act  of  insolvency  or  bankruptcy  on 
such  petition,  was  also  evidence  of  an  act  of  bankruptcy.(M)  An  act  of 
bankruptcy  might  also  have  been  committed  by  non-payment  after  what 
was  called  a  judgment  debtor  summons.  Every  judgment  creditor  who 
was  entitled  to  sue  out  a  writ  of  capias  ad  satisfaciendum{x)  against  the 
debtor  in  respect  of  any  debt  amounting  to  50?.,  exclusive  of  costs, 
might  at  the  end  of  one  week  from  the  signing  of  judgment  have  sued 
out  against  any  trader,  whether  he  were  in  custody  or  not,  a  summons, 
called  a  judgment  debtor  summons,  requiring  him  to  appear,  and  to  be 
examined  respecting  his  ability  to  pay  the  debt.(?/)  In  like  manner, 
where  any  decree  or  order  of  a  court  of  equity,  or  order  in  bankruptcy, 
insolvency,  or  lunacy,  directing  the  payment  of  money,  had  been  dis- 
obeyed by  the  debtor,  after  having  been  duly  served  on  him,  and 
the  person  entitled  to  the  money,  or  interested  in  enforcing  payment 
of  it,  had  obtained  a  peremptory  order  fixing  a  day  for  payment, 
and  the  debtor  being  a  trader,  should  not  within  seven  days  after 
service  on  him  of  the  peremptory  order,  or  within  seven  days 
after  the  day  fixed  by  the  peremptory  order  for  payment  (which 
*should  last  have  happened),  have  paid  the  money,  or  secured,  p^.,  07-1 
or  tendered,  or  compounded  for  it,  to  the  satisfaction  of  the 
creditor,  the  creditor  might  at  the  end  of  those  seven  days  have  sued 
out  against  the  debtor  a  judgment  debtor  summons.(2)  And  if  after 
service  of  such  summons  the  debtor  should  not  have  paid  the  debt  and 
costs,  or  secured  or  compounded  for  the  same  to  the  satisfaction  of  the 
creditor,  the  court  might,  on  the  appearance  of  the  debtor,  or  if  he 
should  not  have  appeared  having  no  lawful  impediment  allowed  by  the 
court,  have  adjudged  him  bankrupt.(a)  The  Act  of  1849  contained  a 
further  provision,  that  on  a  proper  afiidavit  of  debt  being  made  by  any 

(s)  Stat.  24  &  25  Vict.  c.  134,  s.  72.  {t)  Sect.  73. 

(m)  Sect.  75.  (z)  See  ante,  p.  102. 

{y)  Sect.  76.  (z)  Sect.  77. 

(a)  Sect.  83. 


137  OF    CHOSES   IN   ACTION. 

creditor,  stating,  amongst  other  things,  the  delivery  to  the  trader  per- 
sonally, or  to  some  adult  inmate  at  his  usual  or  last  known  place  of  abode 
or  business,  of  written  particulars  of  his  demand,  with  notice  requiring 
immediate  payment,  such  trader  might  be  summoned  to  appear  before 
the  bankrupt  court  either  to  admit  the  demand,  or  to  swear  that  he  verily 
believed  that  he  had  a  good  defence  to  such  demand  or  to  some  part  of 
it.  And  in  such  case  the  court  was  empowered  to  require  the  trader  to 
enter  into  a  bond  with  two  sureties  to  pay  such  sum  as  should  be  recovered, 
together  with  such  costs  as  should  be  given  in  any  action  which  should  have 
been  or  should  be  brought  for  the  recovery  of  such  demand  or  any  part 
thereof.(i)  And  if  he  admitted  the  demand,  and  did  not  satisfy  the 
creditor  within  seven  days  next  after  the  filing  of  such  admission,  he 
committed  an  act  of  bankruptcy  on  the  eighth  day  after  the  filing  of 
such  admission,  provided  a  petition  for  adjudication  of  bankruptcy  were 
filed  against  him  within  two  calendar  months  from  the  filing  of  the 
creditor's  affidavit. (c)  There  were  other  attendant  provisions  which  it  is 
[-^-|OQ-|  now  unnecessary  *to  state,  as  the  only  other  acts  of  bankruptcy 
beyond  the  three  above  referred  to((i)  are  stated  by  the  Bank- 
ruptcy Act,  1869, (e)  in  the  following  terms  : — 

(4.)  That  the  debtor  has  filed  in  the  prescribed  manner  in  the  court  a 
declaration  admitting  his  inability  to  pay  his  debts: 

(5.)  That  execution  issued  against  the  debtor  on  any  legal  process  for 
the  purpose  of  obtaining  payment  of  not  less  than  fifty  pounds 
has  in  the  case  of  a  trader  been  levied  by  seizure  and  sale  of 
his  goods  :^ 

(6.)  That  the  creditor  presenting  the  petition  has  served  in  the  pre- 
scribed manner  on  the  debtor  a  debtor's  summons  requirino^ 
the  debtor  to  pay  a  sura  due,  of  an  amount  of  not  less  than  fifty 
pounds,  and  the  debtor  being  a  trader  has  for  the  space  of 
seven  days,  or  not  being  a  trader  has  for  the  space  of  three 
weeks,  succeeding  the  service  of  such  summons,  neglected  to 
pay  such  sum,  or  to  secure  or  compound  for  the  same. 

But  no  person  shall  be  adjudged  a  bankrupt  on  any  of  the  above 
grounds  unless  the  act  of  bankruptcy  on  which  the  adjudication  is 
grounded  has  occurred  within  six  months  before  the  presentation  of  the 

(b)  Stat.  12  &  13  Vict.  c.  106,  ss.  78,  79.  (c)  Sect.  81. 

(d)  Ante,  p.  135.  (g)  Stat.  32  &  33  Vict.  c.  71,  s.  6. 


1  See  ante,  p.  132,  note  2  k,  p.  134,  note  3. 


OF  BANKRUPTCY  OF  TRADERS.  138 

petition  for  adjudication  ;  moreover,  the  debt  of  the  petitioning  creditor 
must  be  a  liquidated  sum  due  at  law  or  in  equity,*  and  must  not  be  a 
secured  debt,  unless  the  petitioner  state  in  his  petition  that  he  will  be 
ready  to  give  up  such  security  for  the  benefit  of  the  creditors  in  the  event 
of  the  debtor  being  adjudicated  a  bankrupt,  or  unless  the  petitioner  is 
willing  to  give  an  estimate  of  the  value  of  his  security,  in  which  latter 
case  he  may  be  admitted  as  a  petitioning  creditor  to  the  extent  of  the 
balance  of  the  debt  due  to  him  after  deducting  the  *valueso  esti-  r-^^  qq-, 
mated,  but  he  shall,  on  an  application  being  made  by  the  trustee 
within  the  prescribed  time  after  the  date  of  adjudication,  give  up  his 
security  to  such  trustee  for  the  benefit  of  the  creditors  upon  payment  of 
such  estimated  value. 

When  an  act  of  bankruptcy  has  been  committed,  any  single  creditor, 
or  two  or  more  creditors  if  the  debt  due  to  such  single  creditor,  or  the 
aggregate  amount  of  debts  due  to  such  several  creditors,  from  any  debtor, 
amount  to  a  sum  of  not  less  than  fifty  pounds,  may  present  a  petition  to 
the  court,  praying  that  the  debtor  be  adjudged  a  bankrupt,  and  alleging 
as  the  ground  for  such  adjudication  any  one  or  more  of  the  above-men- 
tioned acts  or  defaults,  included  under  the  expression  "acts  of  bank- 
ruptcy."(/)  The  truth  of  the  petition  is  sworn  to  by  the  petitioning 
creditor  ;(^)  and  at  the  hearing  the  court  shall  require  proof  of  the  debt 
of  the  petitioning  creditor,  and  of  the  trading,  if  necessary,  and  of  the 

(/)   Stat.  32  &  33  Vict.  c.  71,  s.  6  ;   ante,  pp.  135,  138. 
(g)  Stat.  32  &  33  Vict.  c.  71,  s.  80,  par.  (1). 

1  See  ante  132,  note  2  fc.  partners,  that  he  may  proceed  against  one 
Whilst  the  adjudication  stands  unre-  alone  :  Melick,  4  B.  R.  26;  see  also  Stevens, 
voked,  all  inquiry  into  the  validity  of  the  5ld.  112.  A  creditor  who  holds  a  mortgage 
petitioning  creditor's  debt  is  precluded:  upon  the  property  of  his  debtor  can  pro- 
Fallon,  2  B.  R.  92.  See  also  Clascn,  3  ceed  against  the  debtor  by  petition  in 
Id.  22.  Such  a  debt  need  not  be  due  bankruptcy,  provided  the  security  falls 
at  the  time  of  the  alleged  bankruptcy :  short  of  a  full  indemnity  by  two  hundred 
Clasen,  3  B  R.  22  ;  Linn  v.  Smith  4  Id.  and  fifty  dollars  or  more  :  Alexander,  4  B. 
12;  Alexander,  Id.  45.  A  single  creditor,  R.  45.  The  reduction  of  the  indebtedness 
whose  debt  is  secured  by  a  lien  on  lands  of  the  petitioning  creditor  below  two 
of  greater  value  than  the  amount  of  his  hundred  and  fifty  dollars,  will  disable  him 
debt,  will  not  be  permitted  to  abandon  all  from  maintaining  proceedings  in  bank- 
remedies  open  to  him  for  the  collection  of  ruptcy :  Ouimette,  3  B.  R.  140 ;  Skelley,  5  Id. 
his  debt,  and  use  the  bankruptcy  court  for  214.  The  petitioning  creditor  is  entitled 
the  purpose  :  Johann,  3  B.  R.  36.  An  adjudi-  '  to  payment  of  expenses  of  instituting  pro- 
cation  of  bankruptcy  may  be  made  against  ceedings  in  bankruptcy:  Williams,  2  B.  R. 
one  partner  only  on  a  joint  debt.  The  28  ;  Moses,  3  Id.  1 ;  N.  Y.  Mail  Stamship 
partnership  creditor  has  such  an  interest  Co.,  Id.  185. 
in  the  separate  property  of  any  one  of  the 


139 


OF    CIIOSES    IN    ACTION. 


act  of  bankruptcy,  and  if  satisfied  with  such  proof  shall  adjudge  the 
debtor  to  be  a  bankrupt. (A)* 

Formerly  a  commission  of  bankruptcy  under  the  great  seal  issued  in 
every  case,  whereby  certain  persons  were  appointed  commissioners  for 

(A)  Stat.  32  &  33  Vict.  c.  71,  s.  8. 


1  See  anle,  p  132,  note  2  k. 
The  petition  should  state  the  facts 
clearly,  or  the  debtor  may  decline  to 
answer  it:  Randall,  3  B.  R.  4.  If  defective, 
it  may  be  amended  after  argument  and 
before  judgment  thereon :  Waite,  1  B.  R. 
84.  An  amendment  merely  formal  will  be 
allowed,  but  not  one  going  to  the  whole 
foundation  of  the  proceedings :  Craft,  2 
B.  R.  44;  Crowley,  1  Id.  137.  See  also 
Leonard,  4  Id.  182.  The  burden  of  proof 
is  on  the  petitioning  creditor ;  he  must 
establish  his  debt  before  giving  evidence 
of  acts  of  bankruptcy :  Brock  v.  Hoppock, 
2  B.  R.  2. 

A  voluntary  petition  filed  pending  in- 
voluntary proceedings  undetermined,  will 
have  no  effect,  and  an  adjudication  made 
thereon  will  be  set  aside :  Stewart,  3  B.  R. 
28.  When  in  the  case  of  a  petition  in  in- 
voluntary bankruptcy,  the  unlawful  intent 
is  the  necessary  consequence  of  the  act 
charged,  as  in  the  case  of  the  payment  of 
one  creditor  by  an  insolvent  debtor,  a  mere 
denial  of  such  intent  is  no  answer  to  the 
petition,  but  the  respondent  must  also 
allege  and  prove  with  what  intent  he  did 
the  act  complained  of:  Silverman,  4  B.  R. 
173.  Where  the  debtor  cannot  be  found 
in  the  district,  in  which  the  petition  is 
filed,  service  of  the  order  to  show  cause 
cannot  be  made  out  of  such  district,  either 
personally  or  by  leaving  a  copy  of  the 
order  at  his  last  or  usual  place  of  abode  ; 
but  service  by  publication  must  be  re- 
sorted to :  Alabama  &  Chattanooga  R.  R. 
Co.  V.  Jones,  5  B.  R.  97.  The  decease  of 
one  partner,  prior  to  any  adjudication  upon 
the  question  of  bankruptcy,  is  not  legal 
cause  for  dismissing  the  petition:  Hunt  v. 
Pooke,  5  B.  R.  IGl.  The  petition  is  incu- 
rably defective  if  the  affidavit  thereto  be 


not  subscribed  by  the  petitioning  creditor: 
Harley,  4  B.  R.  71.     So  also  if  neither  the 
petition,  nor  the  deposition  as  to  the  act  of 
bankruptcy,   is  signed   by  the  petitioner: 
Hunt  V.  Pooke,  5  B.  R.  161.     The  deposi- 
tion  of  a  witness  to   acts    of  bankruptcy 
can    not   be  amended,    because    it   is    the 
proof,    upon    which    the    order    to    show 
cause  issues,  and  without  which  the  whole 
proceeding  is  defective :  May  v.  Harper,  4 
B.  R.  156.     If  the  petitioning  creditor  de- 
sires to  discontinue  proceedings  and  have 
his  petition  dismissed,  he  may  do  so  before 
adjudication,    without    giving    notice    to 
other    creditors  of  the   alleged  bankrupt. 
Until  adjudication,  the  only  parties  to  the 
proceedings    are  the  petitioning   creditor 
and  the  debtor.     The  other  creditors  must 
file  a  new  petition,  or  petition  to  be  sub- 
stituted under  the  last  clause  of  the  42d 
section  of  the  bankrupt  act.     Any  creditor 
wishing  to  be  so  substituted,  must  appear 
on  the  day  to  which  proceedings  have  been 
adjourned,  and  on  that  day  petition  to  be 
substituted.     When    on    such    adjourned 
day  the  petitioning   creditor  does  not  ap- 
pear and  proceed,  and  the  understanding 
with  the  debtor  is  that  such  failure  to  ap- 
pear shall   be  equivalent  to   a  dismissal, 
and  no  other  creditor  appears  to  be  sub- 
stituted, the  proceedings  are  at  an  end: 
Camden  Rolling  Mills   Co.,  3  B.   R.    146; 
Olmsted,  4  Id.  71 ;  see  also  Karr  v.  Whit- 
taker,   5   Id.    123.     The  service  of  an   in- 
junction on  any  person  in  the  bankruptcy 
proceedings,  does  not  give  him  the  right 
to  contest  or  vacate  the  adjudication,  that 
being  a  matter  in  which  he  can   have  no 
interest:  Karr  v.  Whittaker,  5  B.  R.   123. 
See  also  Boston,  Hartford  &  Erie  R.  R.  Co., 
5  Id.  232. 


OF   BANKRUPTCY   OF    TRADERS.  139 

the  purpose  of  directing  that  particular  bankruptcy. (z)  Subsequently  a 
Court  of  Bankruptcy  was  erected  in  London,  and  certain  fixed  commis- 
sioners appointed,  by  any  one  of  whom  the  duties  of  a  commissioner 
were  to  be  performed  in  all  cases  of  bankruptcies  in  London. (yt)  The 
creditor  presented  a  formal  petition  to  the  Lord  Chancellor,  whereupon 
a  fiat  in  bankruptcy  issued,  whereby  the  *creditor  was  author- 
ized to  prosecute  his  complaint  against  the  trader  in  the  Court  ^  J 
of  Bankruptcy,  or  before  one  of  the  commissioners  of  that  court.(Z) 
And  more  recently  fixed  commissioners  were  appointed  throughout  the 
country,  each  of  whom  had  a  separate  district,  and  formed  a  court  of 
record. (m)  But  by  the  Bankruptcy  Act,  1861,  jurisdiction  in  bank- 
ruptcy was  vested  in  the  judges  of  the  County  Courts,  except  those  of 
the  metropolis. (w)  And  provision  was  made  for  the  reduction  of  the 
number  of  the  London  commissioners  to  three.(o)  And  her  Majesty  was 
empowered,  upon  any  vacancy  in  the  ofiice  of  country  commissioner,  to 
transfer,  by  order  in  council,  the  jurisdiction  of  such  commissioner  to 
any  of  the  judges  of  the  County  Courts  within  the  district. (p)  But  the 
Bankruptcy  Act,  1869,  has  now  abolished  all  the  London  commissioners 
and  also  all  the  country  district  courts,  and  has  provided  for  the  ap- 
pointment of  a  chief  judge  in  the  London  Bankruptcy  Court,  and  for 
the  transfer  of  all  the  country  business  to  the  County  Courts  •,{q)  subject 
to  powers  reserved  to  the  Lord  Chancellor  to  exclude  any  of  them  from 
jurisdiction  in  bankruptcy. (r)^ 

(t)  Stat.  13  Eliz.  c.  V,  s.  2  ;  6  Geo.  IV.  c.  16,  s.  12. 

{k)  Stat.  1  &  2  Will.  IV.  c.  56.  (I)  Stat.  1  &  2  Will.  IV.  c.  56,  s.  12. 

{m)   Stats.  5  &  6  Vict.  c.  122,  s.  59  et  seq. ;   12  &  13  Vict.  c.  106,  ss.  6-11. 

{n)  Stat.  24  &  25  Vict.  c.  134,  s.  3.  (o)  Sect.  2, 

{p)   Sect.  4. 

[q)   Stat.  32  &  33  Vict.  c.  Tl,  ss.  59,   60,  128,  130. 

(/•)  Sect.  79.  y 

^  See  ante  p.  132,  note  2  a.  against    proceedings    in    another    Court: 

The  jurisdiction  of  the  District  Courts  in  Richardson,  2  B.  R.  74  ;   Campbell,   6   Int. 

bankruptcy  is  superior  and  exclusive  :  Bar-  Rev.    Rec.   174;   Burns,  Id.  182.     Contra: 

row,  1  B.  R.  125.    See  also  Bowie,  Id.  185.  Reed,  Id.  21 ;  Jacoby,  Id.  149  ;  Metcalf,  Id. 

ButithasbeenheldbytheSuperior  Court  of  223;   Irving  v.  Hughes,   2   B.   R.   20.     See 

New  York  City,  that  nothing  in  the  bank-  also  Davidson,  2  Id.  49 ;  Clark  &  Bininger, 

rupt  act  declares  the  United  States  Courts  3  Id.  123 ;   Snedaker,  Id.  155  ;   Donaldson, 

the  only  forums,  where  the  distribution  of  6  Int.  Rev.  Rec.  199;  Fuller,  4  B.  R.  29; 

a  debtor's  property  can  be  consummated,  Wilbur,  3  Id.  71.     Where  no  allegation  is 

and  that  the  jurisdiction  of  other  tribunals  made,  impeaching  the  validity  under  the 

of  competent  authority,  is  neither  expressly  bankrupt  act  of  the  transfer  to,  and  lawful 

nor  impliedly  excluded :  Clark  &  Bininger,  custody  b}',  receivers  appointed  by  a  state 

3  B.  R.  129.     The  District  Court  in  bank-  Court,  of  property  formerl^^  in  the  posses- 

ruptcy  has  no  power  to  grant  injunctions  sion  of  a  bankrupt,  the  District  Court  has 
13 


140 


OF    CnOSES    IN    ACTION, 


The  fiat  was  abolished  by  tlie  Act  of  1849  ;  and  the  debt,  the  trading, 
and  the  act  of  bankruptcy  having  been  proved,  the  trader  is  adjudged  a 


no  jurisdiction  upon  the  application  of 
the  assignee  of  such  bankrupt,  to  interfere 
with  tlic  custody  of  such  receivers:  Clark 
&  15ininger,  3  B.  R.  130.  See  also  Alden 
V.  Boston,  Hartford  and  Erie  R.  R.  Co.,  5 
Id.  230.  A  state  Court  after  the  institu- 
tion of  proceedings  in  bankruptcy,  may 
nevertheless  entertain  such  applications 
and  make  such  orders  as  are  necessary  to 
preserve  ^the  existence  of  a  mechanic's 
lien,  which  has  attached  prior  to  such 
bankruptcy  proceedings  :  Clifton  v.  Foster, 
3  B.  R.   162.     See  also  Coulter,  5  Id.  64. 

As  to  when  and  how  far  proceedings  in 
other  courts  against  a  bankrupt  Avill  be 
stayed,  pending  the  bankruptcy  and  the 
determination  of  the  question  of  dis- 
charge :  see  Iloyt  v.  Freel,  4  B.  R.  34 ; 
Maxwell  v.  Faxton,  Id.  60 ;  Merritt  v.  Glid- 
den,  5  Id.  157.  As  to  applications  for 
leave  to  commence  suits  against  a  bank- 
rupt: see  Ghirardelli,  4  B.  R.  42. 

The  District  Court,  in  which  the  bank- 
ruptcy proceedings  are  pending,  or  the 
Circuit  Court  for  thai  district,  can,  in  a 
case  where  a  suit  is  brought  in  a  state 
Court  by  an  alleged  mortgage  creditor  to 
foreclose  his  mortgage,  after  the  proceed- 
ings in  bankruptcy  are  instituted,  enjoin 
the  plaintiff  therein  from  further  prosecu- 
ting the  same,  but  the  Circuit  Court  or 
District  Court  of  another  district,  has  no 
bankruptcy  jurisdiction  to  entertain  such 
an  application  for  an  injunction:  Markson 
V.  Ileaney,  4  B.  R.  165.  See  also  Sherman 
V.  Bingham,  5  Id.  34.  The  Circuit  Courts 
of  the  United  States  have  no  jurisdiction 
of  a  case  either  at  law  or  in  equity,  in  which 
a  state  is  plaintiff  against  its  own  citizens. 
Such  jurisdiction  is  not  conferred  upon  the 
Circuit  Courts  by  the  Bankrupt  Act  ot 
1867  :  The  State  of  North  Carolina  v. 
Trustees  of  University,  5  B.  R.  466.  The 
Circuit  Court  may  entertain  a  bill  of  an 
assignee  to  redeem  a  mortgage :  Dwight 
V.  Ames,  2  B.  R.  147.  As  to  the  jurisdiction 
of  the  respective  District  Courts  between 
themselves,  as  determined  by  the  residence 


of  the  bankrupt,  see  Belcher,  1  B.  R.  202  ; 
Bailly,  Id.  177;   Little,  2  Id.   97;   Magie,  1 
Id.  138,  153;    Wiggin,   Id.   90;   Prankard, 
Id.  51 ;  Fogerty  &  Gerrity,  4  Id. 148  ;  Wat- 
son,  Id.    197;   Leighton,   5   Id.  95.     As  to 
jurisdiction    when    petitions    are    filed    in 
different   districts,  see  Leland,  5  Id.   222  ; 
see  also  Foster  &  Pratt,  3  Id.  57  ;  Penn,  5 
Id.   30.     The  District  Court  has  power  to 
release   a  bankrupt  from   arrest  on  state 
process,  in  an  action  upon  a  debt  that  may 
be   discharged  in  bankruptcy:    Glaser,    1 
B.    R.    73.     See    also  Kimball,    2    Id.    74; 
Borst,    Id.    62.      Otherwise    if  the    arrest 
were  prior  to   the  institution  of  proceed- 
ings  in  bankruptcy:   Walker,  1   B.  R.  60; 
llazleton,    2    Id.    12.     See   also     Minon  v. 
Van"  Nostrand,  4  Id.  28.    But  the  bankrupt 
Court  has  no  power  to  discharge   a  bank- 
rupt from  arrest,  on  mesne  process  from  a 
state   Court  in   an  action   of    tort  in  the 
nature  of  deceit,  and  evidence  is  not  ad- 
missible   to    contradict  the  averments   in 
the  declaration  :    Devoe,  2   B.  R.  11  ;   Pat- 
terson, I  Id.  58;   Pettis,  2  Id.   17.     Nor  on 
final   process:    Whitehouse,  4   Id.  15.  Nor 
will  a  bankrupt  be  discharged  from  arrest 
for  a  debt  contracted  in  a  fiduciary  capa- 
city as  a  commission  merchant:   Kimball, 
2  B.  R.  114.     See  also  Jacoby,  6  Int.  Rev. 
Rec.  149.    The  District  Court  may  appoint 
a  receiver  to  take  possession  of  property, 
which  has   been  conveyed  by  a  bankrupt 
for  the  benefit  of  creditors :   Sedgwick   v. 
Place,  3  B.  R.  35.     The   marshal   under  a 
warrant  issued  in  accordance  with  section 
40  of  the  Bankrupt  Act,  may  take  posses- 
sion   of    the   property    of    the    bankrupt, 
wheresoever  and  in  whose  hands  soever 
he  may  find  it :  Briggs,  3  B.   R.  157.     See 
also  Harthill,  4  Id.    131 ;  Marks,  2  Id.  175. 
But  the  District  Court  does  not  possess  the 
power  to  order  in  a  summary  way  the  sale 
of  real   or  personal   estate,   although   the 
same  is  claimed  by  the  assignee   in  bank- 
ruptcy, even  though  the  title  to  the  same 
is  in  dispute,   if  it  also   appears  that  the 
estate  in  question  is  in   the  actual  posses- 


OF  BANKRUPTCY  OF  TRADERS. 


140 


bankrupt  by  the  court  to  which  the  petition  is  presented. (s)  And  the 
Bankruptcy  Act,  1869,  provides  that  a  copy  of  an  order  of  the  court 
adjudging  the  debtor  to  be  bankrupt  shall  be  published  in  the  London 
Gazette,  and  be  advertised  locally  in  such  manner  (if  any)  as  may  be 
^prescribed,  and  the  date  of  such  order  shall  be  the  date  of  the  r^-,  4-1-1 
adjudication  for  the  purposes  of  the  act,  and  the  production  of  a 
copy  of  the  Gazette  containing  such  order  as  aforesaid  shall  be  conclu- 
sive evidence  in  all  legal  proceedings  of  the  debtor  having  been  duly  ad- 
judged a  bankrupt  and  of  the  date  of  the  adjudication. (i?) 


Previously  to  the  Bankruptcy  Act,  1869,  the  estate  of  the  bankrupt 
vested  in  his  assignees.^     These  were  in  modern  times  of  two  kinds ; 


(s)  Stat.  32  &  33  Vict.  c.  71,  s.  8. 


(t)  Sect.  10. 


sion  of  a  third  person,  holding  the  same  as 
owner  and  claiming  absolute  title  to  and 
dominion  over  it  as  his  own  property, 
whether  derived  from  the  debtor  before  he 
was  adjudged  bankrupt,  or  from  some 
former  owner :  Knight  v.  Cheney,  5  B.  R. 
305.  The  refusal  of  the  Court  to  grant  a 
discharge  because  the  bankrupt  had  not 
applied  therefor  within  one  year  from  the 
adjudication,  is  no  bar  to  new  proceedings 
by  the  bankrupt:  Farrell,  5  B.  R.  125. 

Registers  in  bankruptcy  have  the  same 
powers  as  the  district  judges  when  there 
is  no  contest:  Gettleson,  1  B.  R.  ITO; 
Lanier,  2  Id.  59  ;  Brandt,  Id.  76  ;  they  may 
allow  amendments  :  Morford,  1  Ben.  264  ; 
Perry,  1  B.  R.  2  ;  Watts,  2  Id.  145  ;  Orne, 
6  Int.  Rev.  Rec.  116;  Heller,  5  B.  R.  46; 
Carson,  Id.  290 ;  receive  surrender  of 
bankrupt:  Hasbrouck,  6  Int.  Rev.  Rec. 
115  ;  as  to  control  of  cases  before  them, 
see  Hyman,  2  B  R.  107  ;  their  power  as  to 
discharge:  Bellamy,  6  Int.  Rev.  Rec.  127  ; 
Puffer,  2  B.  R.  17.  Certificate  of  question 
by  register  must  be  of  an  issue  of  fact  or 
law  actually  raised :  Pulver,  1  Ben.  381; 
Watts,  2  B.  R.  145;  Haskell,  4  Id.  181; 
Sturgeon,  1  Id.  131 ;  Wright,  Id.  91  ;  Levy, 
6  Int.  Rev.  Rec.  163  ;  Fredenburg,  1  B.  R. 
34 ;  Peck,  3  Id.  186.  Revision  of  ques- 
tions by  the  Circuit  Court  arising  in  the 
course  of  the  proceedings  in  the  District 
Court,  must  be  by  petition  and  not  by 
appeal:  Reed,  2  B.  R.  2.     No  appeal  lies 


from  the  adjudication  to  the  Circuit  Court : 
O'Brien,  6  Int.  Rev.  Rec.  182.  As  to 
appeals  from  the  District  Court  to  the  Cir- 
cuit Court,  see  Kyler,  3  B.  R.  11  ;  Benja- 
min V.  Hart,  4  Id.  138  ;  Place  v.  Sparkman, 

4  Id.  178.  The  general  revisory  jurisdic- 
tion of  the  Circuit  Court,  extends  to  all 
decisions  of  the  District  Court  or  district 
judge  at  chambers,  which  cannot  be  re- 
viewed upon  appeal  or  writ  of  error  under 
the  provisions  of  the  bankrupt  act :  Alex- 
ander, 3  B.  R.  6.  See  also  Mittledorfer, 
Id.  9 ;  York  &  Hoover,  4  B.  R.  156 ;  Place 
V.  Sparkman,  Id.  178  ;  Clark  &  Bininger,  3 
Id.  122.  No  appeal  lies  from  the  Cir- 
cuit Court  to  the  Supreme  Court  of  the 
United  States,  from  a  decree  on  a  petition 
for  review  under  the  revisory  jurisdiction 
of  the  Circuit  Court :  Morgan  v.  Thornhill, 

5  B.  R.  1. 

1  See  ante  p.  132,  note  2  b. 

Creditors  holding  security  cannot  vote 
for  assignee  :  Davis,  6  Int.  Rev.  Rec.  149  ; 
Contra :  Bolton,  1  B.  R.  83,  nor  can  a 
claimant  whose  claim  is  unliquidated : 
Orne,  1  Ben.  361.  Solicitation  of  votes  of 
creditors  for  assignee  will  not  be  sanc- 
tioned by  the  court:  Anon.  2  B.  R.  100; 
see  also  Bliss  6  Int.  Rev.  Rec.  116. 

The  assignee  must  be  a  resident  of  the 
district:  Havens,  1  B.  R.  126;  must  not 
be  related  to  the  bankrupt:  Powell,  2  B. 
R.  17;  Bogert,  3  Id.  161  ;  Zinn,  4  Id.  123. 
But   such   relationship  in  a  remote  degree 


141 


OF    CIIOSES    IN   ACTION. 


official  assignees  and  crerlitors'  assignees.     The  official  assignees  were 
officers  of  the  Bankruptcy  Court,  one  of  whom  was  appointed  by  the 


will  not  be  a  disqualification  :  Zinn,  4  B. 
R.  145.  He  may  be  a  creditor's  attorney: 
Clairmont,  1  B.  R.  42  ;  Barrett,  2  Id.  165. 
As  to  manner  of  election  or  appointment 
of  assignee,  see  Scheiffer,  2  B.  R.  179. 

Assignees  may  sell  unencumbered  assets 
without  the  order  of  the  court:  White,  1 
B.  R.  1,  and  also  encumbered  property  in 
their  possession,  but  in  so  doing  they  sell 
subject  to  lawful  encumbrances :  Mebane, 
3  B.  R.  91.  A  sale  by  the  marshal  under 
a  special  order  of  the  Court,  prior  to  the 
appointment  of  an  assignee,  is  of  the 
nature  of  a  sale  by  a  provisional  assignee  : 
Ilitchings,  4  B.  R.  125. 

Assignees  cannot  recover  assets  from 
third  parties  by  summary  proceedings,  but 
must  do  so  by  bill  in  equity  or  suit  at  law: 
Bonesteel,  3  B.  R.  127  ;  Ballon,  Id.  177  ; 
New  York  Kerosene  Oil  Company,  Id.  31 ; 
see  also  Barstow  v.  Peckman,  5  B.  R.  72. 
Contra:  Neal,  2  B.  R.  82  ;  Norris,  4  Id.  10. 
A  state  Court  may  entertain  jurisdiction  of 
an  action  by  the  assignee  :  Peiper  v.  Har- 
mer,  5  B.  R.  252.  Assignees  may  be  au- 
thorized by  the  court,  to  finish  the  work  on 
chattels  in  an  incomplete  and  unsaleable 
condition :  Dwight  v.  Ames,  2  B.  R.  147. 
The  assignee  is  not  authorized  to  com- 
promise debts  due  the  estate,  with  the 
consent  of  a  committee  of  creditors  ap- 
pointed at  a  meeting  of  creditors:  Dib- 
ble, 3  B.  R.  17.  The  title  to  all  property 
in  the  actual  possession  of  the  bankrupt, 
at  the  time  of  the  commencement  of  the 
proceedings  in  bankruptcy,  passes  to  the 
assignee :  Vogel,  3  B.  R.  49. 

Property  which  has  been  conveyed  by  a 
bankrupt  in  fraud  of  creditors,  prior  to 
the  passage  of  the  bankrupt  act,  vests  in 
the  assignee  :  Goodwin  v.  Sharkey,  3  B.  R. 
138.  A  transfer  of  a  policy  of  insurance 
by  virtue  of  an  assignment  in  bankruptcy, 
does  not  avoid  the  policy,  although  it  con- 
tains the  words  "  if  the  title  of  the  pro- 
perty is  transferred  or  changed,"  or  "if  the 
property  is  assigned  this  policy  shall  be 
void,"'  and  in  case  of  loss  by  fire  the  as- 


signee will  be  entitled  to  recover  the  in- 
surance money :  Starkweather  v.  The 
Cleveland  Ins.  Co.,  4  B.  R.  110,  but  see 
as  to  this  Carow,  4  B.  R.  178.  When  the 
bankrupt  under  a  general  contract  has 
rendered  partial  service,  but  has  not  com- 
pleted the  contract  prior  to  the  filing  of 
the  petition,  but  subsequently  fulfils  the 
the  same,  unless  the  contract  for  paj-ment 
was  contingent  upon  full  performance  of 
the  services,  compensation  will  be  appor- 
tioned between  the  assignee  and  the  bank- 
rupt, in  proportion  to  the  value  of  the 
services  rendered  before  and  after  the 
bankruptcy:  Jones,  4  B.  R.  114. 

The  right  of  accretion  as  to  real  estate, 
is  inseparably  connected  with  the  legal  title, 
and  passes  to  the  assignee:  Kinzie  v.  Win- 
ston, 4  B.  R.  21.  In  Pennsylvania  the  dower 
of  the  wife  of  a  bankrupt  is  not  divested  by 
proceedings  in  bankruptcy:  Angier,  4  B. 
R.  199 ;  see  also  Kelley  v.  Stranger,  3  Id. 
2;  Hester,  5  Id.  285.  Where  husband 
and  wife  join  in  a  deed  duly  acknowledged 
so  as  to  release  the  dower  of  the  wife,  if  the 
deed  be  avoided  in  the  hands  of  a  fraudu- 
lent grantee,  as  having  been  executed  by 
the  bankrupt,  with  intent  to  hinder,  delay 
and  defraud  creditors,  the  assignee  in 
bankruptcy  will  be  entitled  to  the  land 
divested  of  the  wife's  claim  to  dower,  and 
the  husband's  right  to  a  homestead :  Cox 
V.  Wilder,  5  B.  R.  443.  Property  held  in 
trust  does  not  pass  to  the  assignee,  but  it 
must  be  property  that  can  be  followed  or 
distinguished :  Janeway,  4  B.  R.  26.  The 
title  of  the  assignee  is  not  such  as  to  pre- 
vent the  enforcement  of  a  judgment  against 
the  bankrupt,  on  a  portion  of  his  property, 
attached  more  than  four  months  before 
the  commencement  of  proceedings  in  bank- 
ruptcy :  Bates  V.  Tappan,  3  B.  R.  159; 
Bowman  v.  Harding  4  Id.  5 ;  see  also 
Leighton  v.  Kelsey,  Id.  155.  Where  a  party 
appellant  in  a  suit  becomes  bankrupt  after 
appeal  taken,  his  assignee  in  bankruptcy 
may  on  motion  be  substituted  as  appellant 
in  the  case :  Herndon  v.  Howard,  4  B.  R. 


OF  BANKRUPTCY  OF  TRADERS.  141 

court  to  act  for  every  bankruptcy.  Hi§  duty  formerly  was  to  receive  all 
the  personal  estate  and  effects,  and  the  rents  and  profits  of  the  real 
estate,  and  the  proceeds  of  the  sale  of  the  estate  and  effects,  real  and 
personal,  of  the  bankrupt ;  and  after  the  appointment  of  the  creditors' 
assignees,  he  continued  to  be  an  assignee  jointly  with  them.  But  the 
Bankruptcy  Act,  1861,  provided  that,  at  the  appointment  of  the  creditors' 
assignee,  all  the  estate,  both  real  and  personal,  of  the  bankrupt  should  be 
devested  out  of  the  official  assignee  and  vested  in  the  creditors'  assignee. (zt) 
The  management  of  the  estate  was  then  vested  in  the  creditors' assignee ; 
except  as  to  debts  due  to  the  estate  not  exceeding  10?.,  as  to  which  the 
official  assignee  was  to  be  deemed  the  sole  assignee  of  the  estate,  not- 
withstanding the  appointment  of  a  creditors'  assignee. (x)  But  the  Bank- 
ruptcy Act,  1869,  has  abolished  the  official  assignees,  and  has  substituted 
for  the  creditors'  assignees  a  trustee  to  be  appointed  at  a  general  meeting 
of  the  creditors.  And  the  act  provides(?/)  that  the  creditors  *as-  r*-i49-i 
sembled  at  such  meeting  shall  and  may  do  as  follows : 

(1.)  They  shall,  by  resolution,  appoint  some  fit  person,  whether  a 
creditor  or  not,  to  fill  the  office  of  trustee  of  the  property  of 
the  bankrupt,  at  such  remuneration  as  they  may  from  time  to 
time  determine,  if  any  ;  or  they  may  resolve  to  leave  his  ap- 
pointment to  the  committee  of  inspection  thereinafter  men- 
tioned : 

(2.)  They  shall,  when  they  appoint  a  trustee,  by  resolution  declare 
what  security  is  to  be  given,  and  to  whom,  by  the  person  so 
appointed  before  he  enters  on  the  office  of  trustee: 

(3.)  They  shall,  by  resolution,  appoint  some  other  fit  persons,  not  ex- 
ceeding five  in  number,  and  being  creditors  qualified  to  vote  at 
such  first  meeting  of  creditors   as  is  in  the  act  mentioned,  or 

(m)  Stat.  24  &  25  Vict.  c.  134,  s.  117.  (x)  Stat.  24  &  25  Vict.  c.  134,  s.  128. 

(t/)  Stat.  32  &  33  Vict.  c.  71,  s.  14. 

61.     The  assignee  is  entitled  to  be  subro-  husband,  prior  to  his  bankruptcy,  will  be 

gated  to  the  lien  upon  real   estate   of   a  good  againt  the  assignee,  see  Sedgwick  v- 

judgment  creditor,   who    has   proved    his  Place,  5  B.  R.  168  ;  Case  y.  Phelps,  Id.  452. 

debt  against  the  bankrupt's  estate:  Wallace  As  to  what  choses  in  (zc<«'o«,  belonging  to 

V.  Conrad,  3  B.  R.  10.     As  to  the  applica-  the   wife   of  a  bankrupt  pass   to   the  as- 

tion  of  the  rule  contained   in  the  bank-  signee,    see    Boyd,    5    B.    R.    199.      As  to 

rupt   act,    limiting  actions  by  or   against  compensation  of  assignees,  see  Davenport, 

assignees  to    two  years,  see  Sedgwick  v.  3  B.  R.    18;   Pegues,    Id.    19;   Tully,    Id. 

Casey,  4  B.  R.  161;   Krogman,  5  Id.  116;  19.      As    to     removal    of    assignees,    see 

Masterson,   4  Id.  180;  Peiper  v.   Harnier,  Mallory,  4B.  R.  38  ;  Price,  Id.  137 ;  Dewey, 

5  Id.  252.  4  Id.  139  ;  Blodget,  5  B.  R.  472. 
As  to  what  settlements  on  a  wife  by  a 


142  OF  cnosES  in  action. 

autliorized  in  the  prescribed  form  by  creditors  so  qualified  to 
vote,  to  form  a  committee  of  inspection  for  the  purpose  of 
superintending  the  administration  by  the  trustee  of  the  bank- 
rupt's property : 
(4.)  They  may,  by  resolution,  give  directions  as  to  the  manner  in 
which  the  property  is  to  be  administered  by  the  trustee,  and  it 
shall  be  the  duty  of  the  trustee  to  conform  to  such  directions, 
unless  the  court  for  some  just  cause  otherwise  orders. 

Subject  to  the  provisions  of  the  act,  the  trustee  has  power  to  do  the 
following  things  : — 

(1.)  To  receive"  and  decide  upon  proof  of  debts  in  the  prescribed 
manner,  and  for  such  purpose  to  administer  oaths  : 
(2)  To  carry  on  the  business  of  the  bankrupt  so  far  *as  may  be 
L         -I  necessary  for  the  beneficial  winding  up  of  the  same : 

(3.)  To  bring  or  defend  any  action,  suit,  or  other  legal  proceeding  re- 
lating to  the  property  of  the  bankrupt : 
(4.)  To  deal  with  any  property  to  which  the  bankrupt  is  beneficially 
entitled  as  tenant  in  tail  in  the  same  manner  as  the  bankrupt 
might  have  dealt  with  the  same ;    and  the  sections  fifty-six  to 
seventy-three  (both  inclusive)  of  the  act  of  the  session  of  the  third 
and  fourth  years  of  the  reign  of  King  William  the  Fourth  (chap- 
ter seventy-four),  "for  the  abolition  of  fines  and  recoveries,  and 
for  the  substitution  of  more  simple  modes  of  assurance,"  shall 
extend  and  apply  to  proceedings  in  bankruptcy  under  the  act  as 
if  those  sections  were  re-enacted  and  made  applicable  in  terms 
to  such  proceedings : 
(5.)  To  exercise  any  powers  the  capacity  to  exercise  which  is  .vested 
in  him  under  the  act,  and  to  execute  all  powers  of  attorney,  deeds, 
and  other  instruments  expedient  or  necessary  for  the  purpose  of 
carrying  into  effect  the  provisions  of  the  act : 
(6.)  To  sell  all  the  property  of  the  bankrupt  (including  the  goodwill 
of  the  business,  if  any,  and  the  book  debts  due  or  growing  due  to 
the  bankrupt)  by  public  auction  or  private  contract,  with  power, 
if  he  thinks  fit,  to  transfer  the  whole  thereof  to  any  person  or 
company,  or  to  sell  the  same  in  parcels : 
(7.)  To  give  receipts  for  any  money  received  by  him,  which  receipt 
shall  effectually  discharge  the  person  paying  such  money  from  all 
responsibility  in  respect  of  the  application  thereof: 


OF   BANKRUPTCY    OF   TRADERS.  143 

(8.)  To  prove,  rank,  claim,  and  draw  a  dividend  in  *the  mat-    r*i44-| 
ter  of  the  bankruptcy  or  sequestration  of  any  debtor  of 
the  bankrupt  :[z) 

The  trustee  may  appoint  the  bankrupt  himself  to  superintend  the 
management  of  the  property  or  of  any  part  thereof,  or  to  carry  on  the 
trade  of  the  bankrupt  (if  any)  for  the  benefit  of  the  creditors,  and  in  any 
other  respect  to  aid  in  administering  the  property  in  such  manner  and 
on  such  terms  as  the  creditors  direct.(a) 

The  trustee  may,  with  the  sanction  of  the  committee  of  inspection,  do 
all  or  any  of  the  following  things  : — 

(1.)  Mortgage  or  pledge  any  part  of  the  property  of  the  bankrupt  for 

the  purpose  of  raising  money  for  the  payment  of  his  debts  : 
(2.)  Refer  any  dispute  to  arbitration,   compromise  all  debts,  claims, 
and  liabilities,  whether  present  or  future,  certain  or  contingent, 
liquidated  or  unliquidated,  subsisting  or  supposed  to  subsist  be- 
tween the  bankrupt  and  any  debtor  or  person  who  may  have 
incurred  any  liability  -to  the  bankrupt,  upon  the  receipt  of  such 
sums,  payable  at  such  times,  and  generally  upon  such  terms  as 
may  be  agreed  upon  : 
(3.)  Make  such  compromise  or  other  arrangement  as  may  be  thought 
expedient  with  creditors,  or  persons  claiming  to  be  creditors,  in 
respect  of  any  debts  provable  under  the  bankruptcy  : 
(4.)  Make  such  compromise  or  other  arrangement  as  may  be  thought 
expedient  with  respect  to  any  claim  arising  out  of  or  incidental 
to  the  property  of  the  bankrupt,  made  or  capable  of  being  made 
on  the  trustee  by  any  person  or  by  the  trustee  on  any  person  : 
(5.)  *Divide  in  its  existing  form  against  the  creditors,  accord-    r*;^45-| 
ing  to  its  estimated  value,  any  property  which  from  its 
peculiar  nature  or  other  special  circumstances  cannot  advantage- 
ously be  realized  by  sale. 
The  sanction  given  for  the  purposes  of  this  section  may  be  a  general 
permission  to  do  all  or  any  of  the  above-mentioned  things,  or  a  permis- 
sion to  do  all  or  any  of  them  in  any  specified  case  or  cases.(&) 

The  trustee  may,  with  the  sanction  of  a  special  resolution  of  the  cred- 
itors assembled  at  any  meeting,  of  which  notice  has  been  given  specify- 

(z)  Stat.  32  &  33  Vict.  c.  VI,  s.  25.  (a)  Sect.  26. 

{b)  Sect.  27. 


145  OF    CIIOSES    IN    ACTION. 

ing  tlie  object  of  such  meeting,  accept  any  composition  offered  by  the 
bankrupt,  or  assent  to  any  general  scheme  of  settlement  ef  the  affairs  of 
the  bankrupt,  upon  such  terms  as  may  be  thought  expedient,  and  with 
or  without  a  condition  that  tlie  order  of  adjudication  is  to  be  annulled, 
subject  nevertheless  to  the  approval  of  the  court,  to  be  satisfied  by  the 
judge  of  the  court  signing  the  instrument  containing  the  terms  of  such 
composition  or  scheme,  or  embodying  such  terms  in  an  order  of  the 
court. (r,') 

A  trustee  shall  not,  without  the  consent  of  the  committee  of  inspec- 
tion, employ  a  solicitor  or  other  agent,  but  where  the  trustee  is  himself 
a  solicitor  he  may  contract  to  be  paid  a  certain  sum  by  way  of  per- 
centajre  or  otherwise  as  a  remuneration  for  his  services  as  trustee,  in- 
eluding  all  professional  services,  and  any  such  contract  shall,  notwith- 
standing any  law  to  the  contrary,  be  lawful. ((^) 

Where  the  goods  of  any  trader  have  been  taken  in  execution  in  re- 
spect of  a  judgment  for  a  sum  exceeding  *fifty  pounds  and  sold, 
L  J  the  sheriff,  or  in  the  case  of  a  sale  under  the  direction  of  the 
county  court,  the  high  bailiff  or  other  oflficer  of  the  county  court,  shall 
retain  the  proceeds  of  such  sale  in  his  hands  for  a  period  of  fourteen 
days  ;  and  upon  notice  being  served  on  him  within  that  period  of  a  bank- 
ruptcy petition  having  been  presented  against  such  trader,  shall  hold  the 
proceeds  of  such  sale,  after  deducting  expenses,  on  trust  to  pay  the  same 
to  the  trustee ;  but  if  no  notice  of  such  petition  having  been  presented 
be  served  on  him  within  such  period  of  fourteen  days,  or  if,  such  notice 
having  been  served,  the  trader  against  whom  the  petition  has  been  pre- 
sented is  not  adjudged  a  bankrupt  on  such  petition,  or  on  any  other  peti- 
tion of  which  the  sheriff,  high  bailiff  or  other  officer  has  notice,  he  may 
deal  with  the  proceeds  of  such  sale  in  the  same  manner  as  he  would  have 
done  had  no  notice  of  the  presentation  of  a  bankruptcy  petition  been 
served  on  liim.(e) 

As  the  bankrupt  was  discharged  from  such  claims  only  as  had  been  or 
might  have  been  proved  under  the  bankruptcy,  elaborate  provisions  were 
made  by  the  former  acts  for  the  proof  of  as  many  demands  as  possible. 
As  these  provisions  have  now  been  repealed,  it  is  unnecessary  to  state 
them.     The  present  act  provides  as  follows  :  ^  "  Demands  in  the  nature 

(c)  Stat.  32  &  33  Vict.  c.  n,  s.  28.  {d)  Sect.  29. 

(c)  Sect.  87. 

1  See  ante,  p.  132,  note  2  c.  plying  with  the  provisions  of  the  bankrupt 

Any  debt,  which  maybe  proved  by  com-     act,  is  a  provable  debt:  Rankin  v.  Florida, 


OF    BANKRUPTCY    OF   TRADERS. 


146 


of  unliquidated  damages  arising  otherwise  than  by  reason  of  a  contract  or 
promise  shall  not  be  provable  in  bankruptcy  ;  and  no  person  having  notice 


Atlantic  &  G.  C.  R.  R.  Co.,  1  B.  R.  196. 
Debts  barred  by  the  statute  of  limitations 
of  the  bankrupt's  domicil,  may  be  proved 
against  his  estate  ;  to  prevent  it,  the  debt 
must  be  shown  to  be  barred  throughout 
the  United  States :  Ray,  6  Int.  Rev.  Rec. 
223.  Contra:  Kiiigsley,  1  B.  R.  66;  Shep- 
ard,  Id.  115;  Harden,  Id.  97.  A  debt 
created  by  fraud  is  provable  :  Rundle,  2  B. 
R.  49;  Wright,  Id.  14;  Robinson,  Id.  108; 
Comstock,  22  Vt.  642.  Judgment  for  a 
fine  imposed  by  a  criminal  court  cannot  be 
proved:  Sutherland,  3  B.  R.  83.  Debt 
contracted  in  Confederate  notes  is  not 
provable :  Baily  v.  Milner,  35  Geo.  330 ; 
nor  one  contracted  by  a  feme  covert,  un- 
less under  special  statutory  regulations : 
Slichter,  2  B.  R.  107.  Reservation  of 
usurious  interest  on  discount  of  a  note  by 
a  national  bank,  does  not  bar  probate  of 
the  principal  debt :  Moore  v.  Exchange 
Bank  of  Columbus,  1  B.  R.  123. 

A  party  holding  the  bankrupt's  notes  as 
collateral  security,  may  prove  them  to  an 
extent  sufficient  to  secure  dividends  to  the 
amount  of  his  claim :  Baily  v.  Nichols,  2 
B.  R.  151.  The  liability  of  a  bankrupt  as 
endorser  having  become  absolute,  a  cred- 
itor holding  a  mortgage  from  the  maker  to 
secure  the  payment  of  the  notes  endorsed, 
may,  nevertheless,  prove  their  full  amount 
against  the  estate  of  the  endorser:  Cram, 
1  B.  R.  132.  Claims  for  unliquidated 
damages  cannot  be  proved,  without  an  ap- 
plication for  the  assessment  thereof,  as 
provided  by  the  bankrupt  act:  Clough,  2 
B.  R.  59.  Claims  of  the  bankrupt  for  un- 
liquidated damages  (while  unliquidated), 
cannot  be  set  off  against  that  of  a  cred- 
itor: Orne,  6  Int.  Rev.  Rec.  84.  Debts 
created  by  fraud  not  being  dischargeable, 
the  provisions  of  the  bankrupt  act  as  to 
waiver  of  action,  and  discharge  and  sur- 
render of  judgment  by  creditor  proving  a 
debt,  do  not  apply:  Migel,  2  B.  R.  153; 
Rosenberg,  Id.  81  ;  Robinson,  Id.  108;  but 
an  action  on  a  provable  debt  may  be  stayed 
until  the  determination  of  the  discharge, 


whether  the  debt  is  dischargeable  or  not : 
Rosenberg,  2  B.  R.  81  ;  Migel,  Id.  153.  See 
however,  Seymour,  6  Int.  Rev.  Re?.  60.  A 
judgment  obtained  on  a  breach  of  promise 
to  marry,  is  provable  in  bankruptcy  and 
barred  by  the  discharge  :  Sidle,  2  B.  R. 
77.  So  is  a  judgment  in  trespass  for  ma- 
licious imprisonment :  Simpson,  2  B.  R.  17. 

Where  a  creditor,  after  the  filing  of  the 
bankrupt's  petition,  but  before  the  first 
meeting  of  creditors,  transfers  his  debt  to 
another,  the  debt  may  be  proved  by  the 
owner  of  it  at  the  time  of  proof,  the  oath 
being  modified  to  suit  the  facts  of  the 
case  :  Murdock,  3  B.  R.  36.  See  also 
Frank,  5  Id.  194. 

When  an  endorser's  liability  has  become 
fixed,  such  liability  constitutes  a  debt  due 
and  payable  from  the  endorser ;  and  may 
be  made  the  foundation  of  involuntary  as 
well  as  voluntary  proceedings  in  bank- 
ruptcy :  Nickodemus,  3  B.  R.  55.  A  depo- 
sition, by  an  assignee  for  value  of  a  chose 
in  action,  before  bankruptcy,  is  sufficient  to 
entitle  him  to  prove  his  debt  and  be  con- 
sidered the  creditor  in  respect  to  such 
debt,  and  he  has  the  right  to  take  any  such 
action  or  proceedings  in  the  cause,  in  the 
name  of  his  assignor,  at  his  own  expense, 
as  he  may  be  advised  :  Fortune,  3  B.  R. 
83.  A  creditor  holding  security,  who 
through  inadvertence  or  ignorance,  has 
proved  his  debt  without  reference  to  his 
security,  will  be  allowed  to  withdraw  such 
proof  and  resort  to  his  security:  Brand,  3 
B.  R.  85;  Clark  &  Binninger,  5  Id.  255. 
A  creditor,  who  has  received  a  preference, 
having  reasonable  cause  to  believe  that 
the  bankrupt  was  insolvent  when  it  was 
made,  but  who  afterwards  voluntarily 
surrenders,  before  judgment  or  decree 
against  him.  to  the  assignee,  all  property, 
&c.,  received  by  him,  will  be  allowed  to 
prove  his  debt :  Montgomery,  3  B.  R.  97  ; 
Scott  &  McCarty,  4  Id.  139  ;  Kipp,  Id.  190. 
Contra:  Walton,  Id.  154.  But  payment  cf 
a  decree  obtained  against  such  creditor, 
is  not  a  surrender  within  the  meaning  of 


146 


OF   CHOSES    IN    ACTION. 


of  any  act  of  bankruptcy  available  for  adjudication  against  the  bankrupt 
shall  prove  for  any  debt  or  liability  contracted  by  the  bankrupt  subse- 


the  bankrupt  act,  and  such  creditor  will 
not  be  allowed  to  prove  his  debt :  Tonkin 
&  Trewartha,  4  B.  R.  13  ;  Richter,  Id.  67. 
But  receiving  preference  as  to  one  debt, 
will  not  affect  the  right  to  prove  another, 
as  to  which  no  preference  was  received,  or 
to  receive  dividends  thereon  :  Richter,  4 
B.  R.  G7. 

The   Court  has  at  all  times  full   power 
and    control    over   proofs    of  claims,    and 
may  allow  amendments  and  supplemental 
proofs   to  be   filed  :  Montgomery,  3  B.   R. 
108.     See  also  Loweree,  6   Int.  Rev.  Rec. 
115.     Where  a   protested  note  (in  which 
the   bankrupt   was    principal),   held  by  a 
bank  that  had  discounted  it,  was  taken  up 
hf  a  new  note  made  by  the  same   parties, 
and  accepted  by  the  bank  after  adjudica- 
tion of  bankruptcy,  it  was  held  that  the 
original    debt   was  thereby  extinguished, 
and  the  liability  ceased  to  be   a  claim   on 
the  estate  :  Montgomery,  3  B.  R.  108.     A 
creditor  may  prove   a  claim  based    on  a 
debt  existing  at  the  time   of  proceedings 
commenced  in  bankruptcy,  notwithstand- 
ing he  may,  in  a  suit  to  recover  the  same, 
have  obtained  judgment  thereafter.     The 
debt  is  not  so  merged  in  the  judgment,  as 
to  deprive  the  creditor  of  his  right  to  prove 
it:  Brown,  3  B.  R.  145  ;  Vickery,  Id.  171. 
Contra  :  Williams,  2  Id.  79  ;  Gallison,  5  B. 
R.  353.     See  also  as  to  this  :  Crawford,  3 
Id.   171  ;  Stevens,  4  Id.   122  ;  Hunt,  5  Id. 
433.      If  doubts    are   entertained  by   the 
register  as  to  the  validity  of  a  claim,  its 
proof  may  be  postponed   until   after    the 
election  of  the  assignee  :  Herrmann,  3  B.  R. 
153;  Stevens,  4  Id.  122.     And   such  proof 
of  claim,  when  afterwards  tendered,  is  to 
be  treated  in  all  respects  as  if  it  had  not 
been  presented  before  the  election  of  as- 
signee and  postponed:  Herrmann,  3  B.  R. 
161.     As  to  the  manner,  form,  and  requi- 
sites of  proper  proof  of  claims,  see  Elder, 
3  B.  R.  165. 

Where  securities  are  purchased  and  held 
by  a  banker  or  broker  in  a  fiduciary  man- 
ner,  and  are   hypothecated  in    breach   of 


such  trust,  the  proceeds  of  other  securities 
given  by  such  banker  or  broker,  who  after- 
wards becomes  bankrupt,  to  redeem  the 
securities  so  hypothecated,  cannot  be 
claimed  by  the  cestui  que  (rust  from  the 
bankrupt's  estate.  Such  cestui  que  (rust 
can  only  prove  his  debt,  and  participate  in 
dividends  with  other  creditors  :  Ungewitter 
V.  Von  Sachs,  3  B.  R.  178. 

A  married  woman  having  loaned  money 
to  her  husband,  to  be  used  by  him  as  his 
contribution  to  the  capital  stock  of  a  co- 
partnership, for  which  a  promissory  note 
was  given  by  said  copartnership  to  him, 
which  he  transferred  to  her,  it  was  held 
that  she  had  a  claim  provable  against  his 
separate  estate,  and  not  against  that  of  the 
copartnership  :  Frost  &  Westfall,  3  B.  R. 
180.  If  a  contract  is  valid  according  to 
the  lex  loci  contractus,  a  debt  arising  there- 
from is  provable  in  bankruptcy,  although 
by  the  laws  of  the  state,  in  which  the 
debtor  resides,  no  recovery  could  be  had 
on  such   contract :  Murray,  3  B.  R.  187. 

Where  the  holder  of  a  note  receives 
part  of  the  amount  of  the  same  from  the 
endorser,  he  is  entitled  to  prove  for  the 
whole  amount  against  the  estate  of  the 
bankrupt  maker,  and  holds  any  dividends 
he  may  receive  in  excess  of  the  amount  of 
the  note  in  trust  for  the  endorser.  If  the 
holder  omits  to  prove  his  debt,  the  en- 
dorser is  entitled  to  prove  the  note  against 
the  bankrupt's  estate,  and  receive  divi- 
dends upon  its  whole  amount:  Ellerhorst, 
5  B.  R.  144.  The  bankrupt's  wife  may 
prove  as  a  creditor  against  his  estate,  for 
money  realized  by  him  out  of  her  separate 
estate,  if  the  evidence  clearly  shows  that 
the  transaction  was  intended  to  be  a  loan 
and  not  a  gift:  Blandin,  5  B.  R.  39. 
Where  the  original  debt  has  been  proved 
and  allowed,  attachment  costs  can  be 
proved  as  a  general  debt  against  the  estate 
of  the  bankrupt,  if  made  in  good  faith, 
before  the  commencement  of  proceedings 
in  bankruptcy,  without  a  knowledge  of  the 
insolvency  of  the  debtor,  and  with  no  in- 


OF  BANKRUPTCY  OF  TRADERS.  146 

quently  to  the  date  of  his  so  having  notice.  Save  as  aforesaid,  all 
debts  and  liabilities,  present  or  future,  certain  or  contingent,  to  which  the 
bankrupt  is  subject  at  the  date  of  the  order  of  adjudication,  or  to  which  he 
*may  become  subject  during  the  continuance  of  the  bankruptcy  r:i;i  j^y-i 
by  reason  of  any  obligation  incurred  previously  to  the  date  of 
the  order  of  adjudication,  shall  be  deemed  to  be  debts  provable  in  bank- 
ruptcy, and  may  be  proved  in  the  prescribed  manner  before  the  trustee 
in  the  bankruptcy.  An  estimate  shall  be  made  according  to  the  rules  of 
the  court  for  the  time  being  in  force,  so  far  as  the  same  may  be  appli- 
cable, and  where  they  are  not  applicable  at  the  discretion  of  the  trustees, 
of  the  value  of  any  debt  or  liability  provable  as  aforesaid,  which  by 
reason  of  its  being  subject  to  any  contingency  or  contingencies,  or  for 
any  other  reason,  does  not  bear  a  certain  value.  Any  person  aggrieved 
by  any  estimate  made  by  the  trustee  as  aforesaid  may  appeal  to  the 
court,  and  the  court  may,  if  it  think  the  value  of  the  debt  or  liability  in- 
capable of  being  fairly  estimated,  make  an  order  to  that  effect,  and  upon 
such  order  being  made  such  debt  or  liability  shall,  for  the  purposes  of 
this  act,  be  deemed  to  be  a  debt  not  provable  in  bankruptcy,  but  if  the 
court  think  that  the  value  of  the  debt  or  liability  is  capable  of  being 
fairly  estimated  it  may  direct  such  value  to  be  assessed  with  the  consent 
of  all  the  parties  interested  before  the  court  itself  without  the  interven- 
tion of  a  jury,  or  if  such  parties  do  not  consent,  by  a  jury,  either  before 
the  court  itself  or  some  other  competent  court,  and  may  give  all  neces- 
sary directions  for  such  purpose,  and  the  amount  of  such  value  when 
assessed  shall  be  provable  as  a  debt  under  the  bankruptcy.  "  Liability  " 
shall  for  the  purposes  of  this  act  include  any  compensation  for  work  or 
labor  done,  any  obligation  or  possibility  of  an  obligation  to  pay  money 
or  money's  worth  on  the  breach  of  any  express  or  implied  covenant, 
contract,  agreement,  or  undertaking,  whether  such  breach  does  or  does 
not  occur,  or  is  or  is  not  likely  to  occur  or  capable  of  occurring  before 
the  close  of  the  bankruptcy  ;  and  generally  it  shall  include  any  express 
*or  implied  engagement,  agreement  or  undertaking,  to  pay,  or  r*-|4Qi 
capable  of  resulting  in  the  payment  of  money  or  money's  worth, 
whether  such  payment  be  as  respects  amount  fixed  or  unliquidated,  as 
respects  time  present  or  future,  certain  or  dependent  on  any  one  contin- 
gency, or  two  or  more  contingencies,  as  to  mode  of  valuation  capable  of 
being  ascertained  by  fixed  rules,  or  assessable  only  by  a  jury,  or  as 
matter  of  opinion. "(/) 

(/)  Stat.  32  &  33  Vict.  c.  71,  s.  31. 

tention  to  defeat  the  operations  of  the  ings,  and  costs  for  attaching  and  keeping 
bankrupt  act;  but  costs  incurred  after  the  exempt  property,  will  be  disallowed: 
commencement    of    bankruptcy   proceed-     Preston,  5  B.  R.  293. 


148  OF    CHOSES    IN   ACTION.        * 

The  landlord  or  other  person  to  whom  any  rent  is  due  from  the  bank- 
rupt may  at  any  time,  either  before  or  after  the  commencement  of  the 
bankruptcy,  distrain  upon  the  goods  or  effects  of  the  bankrupt  for  the 
rent  due  to  him  from  the  bankrupt,  with  this  limitation,  that  if  such  dis- 
tress for  rent  be  levied  after  the  commencement  of  the  bankruptcy  it 
shall  be  available  only  for  one  years  rent  accrued  due  prior  to  the  date 
of  the  order  of  adjudication,  but  the  landlord  or  other  person  to  whom 
the  rent  may  be  due  from  the  bankrupt  may  prove  under  the  bankruptcy 
for  the  overplus  due  for  which  the  distress  may  not  have  been  available.((/) 

When  any  rent  or  other  payment  falls  due  at  stated  periods,  and  the 
order  of  adjudication  is  made  at  any  time  other  than  one  of  such  periods, 
the  person  entitled  to  such  rent  or  payment  may  prove  for  a  propor- 
tionate part  thereof  up  to  the  day  of  the  adjudication,  as  if  such  rent  or 
payment  grew  due  from  day  to  day.(/i)^ 

Interest  on  any  debt  provable  in  bankruptcy  may  be  allowed  by  the 
trustee  under  the  same  circumstances  in  which  interest  would  have  been 
allowable  by  a  jury  if  an  action  had  been  brought  for  such  debt.(iy 

*  If  any  bankrupt  is  at  the  date  of  the  order  of  adjudication 
'-  -I  liable  in  respect  of  distinct  contracts  as  member  of  two  or  more 
distinct  firms,  or  as  a  sole  contractor,  and  also  as  member  of  a  firm,  the 
circumstance  that  such  firms  are  in  whole  or  in  part  composed  of  the 
same  individuals,  or  that  the  sole  contractor  is  also  one  of  the  joint  con- 
tractors, shall  not  prevent  proof,  in  respect  of  such  contracts,  against  the 
properties  respectively  liable  upon  such  contracts.(y}^ 

{g)  Stat.  32  &  33  Vict.  c.  71,  s.  34.  {h)  Sect.  35. 

(i)  Sect.  36.  {/)  Sect.  37. 

1  See  ante,  page  132,  note  2  c.  Id.  25 ;  Walker  v.  Barton,  3  Id.  63  ;  Joslyn, 
A  provision  similar  to  this  is  contained  Id.   118;    McGrath,  5   Id.  254;    Trim,   Id. 
in  the  United  States  Bankrupt  Act.  23.      If  the    assignee    elects    to    accept   a 
The  landlord  may  be  entitled  to  accru-  lease   held  by  the    bankrupt,    he   renders 
ing  rent,  as  storage,  for  the  time  that  the  himself  liable  on  behalf  of  the  estate  for 
premises   are    occupied  by  the  assignee:  rent,  from  the  date  of  the  filing  of  the  peti- 
Appold,    1  B.   R.   178;    Walton,    Id.  154.  tion :  Laurie,  4  B.  R.  7. 
As  to  whether  rent  is  payable,  otherwise  ^  No  express  provision  of  this  kind  is  to 
than  other  debts,  would  seem  to  depend  be  found  in  the  United  States  Bankrupt 
upon  the  fact,  whether  or  not  it  partakes  Act,  but  it  has  been  held    that  a  creditor 
of  the  nature  of  a  lien  by  the  laws  of  the  in  proving  his  debt  may  include  the  in- 
respective  states:  see  Appold,  1  B.  R.  178,  terest  due  thereon:  Orne,  1  Ben.  361. 
where  rent  not  exceeding  one   year  was  ^    \ji  analogous  provision  is  contained 
allowed  as  a  preferred  claim :    Wynne,  4  in  the  United  States  Bankrupt  Act. 
B.  R.  5 ;  Terrell,  2  Id.  100  ;  Merrifield,   3 


OF  BANKKUPTCY  OF  TRADERS.  149 

The  trustee,  with  the  consent  of  the  creditors,  testified  by  a  resolution 
passed  in  general  meeting,  may  from  time  to  time,  during  the  continu- 
ance of  the  bankruptcy,  make  such  allowance  as  maybe  approved  by  the 
creditors  to  the  bankrupt  out  of  his  property  for  the  support  of  the  bank- 
rupt and  his  family,  or  in  consideration  of  his  services  if  he  is  engaged 
in  winding  up  his  estate.(^)^ 

Where  there  have  been  mutual  credits,  mutual  debts,  or  other  mutual 
dealings  between  the  bankrupt  and  any  other  person  proving  or  claiming 
to  prove  a  debt  under  his  bankruptcy,  an  account  shall  be  taken  of  what 
is  due  from  the  one  party  to  the  other  in  respect  of  such  mutual  deal- 
ings, and  the  sum  due  from  the  one  party  shall  be  set  oif  against  any  sum 
due  from  the  other  party,  and  the  balance  of  such  account,  and  no  more, 
shall  be  claimed  or  paid  on  either  side  respectively ;  but  a  person  shall 
not  be  entitled  under  this  section  to  claim  the  benefit  of  any  set-off  against 
the  property  of  a  bankrupt  in  any  case  where  he  had,  at  the  time  of  giv- 
ing credit  to  the  bankrupt,  notice  of  an  act  of  bankruptcy  committed  by 
such  a  bankrupt  and  available  against  him  for  adjudication. (?)^ 

A  creditor  holding  a  specific  security  on  the  property  *of  the    r*i  cat 
bankrupt,  or  on  any  part  thereof,  may,  on  giving  up  his  security, 
prove  for  his  whole  debt.     He  shall  also  be  entitled  to  a  dividend  in  re- 
spect of  the  balance  due  to  him  after  realizing  or  giving  credit  for  the 

(/c)  Sect.  38.  (1)  Sect.  39, 

1  By  the  14th  section  of  the  United  States  tion  or  other  process  or  order  of  any  Court, 
Bankrupt  Act  of  1867,  the  bankrupt  is  al-  by  the  laws  of  the  state  in  which  the  bank- 
lowed  his  necessary  household  and  kitchen  rupt  has  his  domicil,  at  the  time  of  the 
furniture,    and    such    other    articles    and  commencement  of  the  proceedings  in  bank- 
necessaries  as  the  assignee  shall  designate  ruptcy,  to  an  amount  not  exceeding  that 
and    set   apart,    having   reference    in    the  allowed  by  such  state  exemption  laws  in 
amount,  to  the  family,  condition  and  cir-  force  in  the  year  1864.     As  to  the  foregoing 
cumstances  of  the  bankrupt,  but  altogether  exemptions,  see  Cobb,   1  B.  R.  106  ;  Ruth 
not  to  exceed  in  value  in  any  case  the  sum  6   Int.  Rev.  Rec.    166  ;    Thornton,  2  B.  R. 
of    five    hundred    dollars;    and    also    the  68;    Lawson,   Id.    19;    Safer,  1  Id.   147 
wearing  apparel  of  the  bankrupt  and  that  Edwards,    2    Id.    109;    Jackson,   Id.    158 
of  his  wife  and  children ;  and  his  uniform.  Perdue,  Id.  67;   Feely,  3   Id.  15;  Noakes 
arms  and  equipments,  if  he  is  or  has  been  1  Id.  164  ;  Bennett,  2  Id.  66  ;  Parish,  Id.  62 
a  soldier  in  the  militia,  or  in  the  service  Grifiin,  Id.  85  ;  Lambert,  Id.  138  ;  McLean 
of  the  United  States;  and  such  other  pro-  Id.  173;  Watson,  Id.  174;  Whitehead,  Id 
perty  as  was,  or  thereafter  should  be  ex-  180;  Summers,  3  Id.   21;  Taylor,  Id.  38 
empted  from  attachment  or  seizure  or  levy  Brown,  Id.  60  ;  Young,  Id.  Ill ;  Asken,  Id 
on  execution,  by  the  laws  of  the   United  142;  Rupp,  4  Id.  25;  Beckerkord,  Id.  59 
States;  and  such   other  property  not  in-  Schwartz,   Id.    189;    Stevens,  5    Id.    298 
eluded  in  the  foregoing  exceptions,  as   is  Welch,  Id.  348;  Hunt,  Id.  493. 
exempted  from  levy  and  sale  upon  execu-         ^  See  ante,  p.  132,  note  2  c. 


150 


OF  CHOSES   IN   ACTION. 


value  of  his  security,  in  manner  and  at  the  time  prescribed.  A  creditor 
hohlinir  such  security  as  aforesaid,  and  not  complying  with  the  foregoing 
conditfons,  shall  be  excluded  from  all  share  in  any  dividend.(m)i 

As  the  bankruptcy  of  a  person  consists  in  his   committing  an  act  of 
bankruptcy,  and  not  in  his  being  adjudged  bankrupt,  his  assignees,  when 
appointed,  became  entitled  to  all  the  real  and  personal  estate  of  which 
(m)  Stat.  32  &  33  Vict.  c.  71,  s.  40. 


1  Sec  ante,  p.  132,  note  2  d. 
As  to  power  of  assignee  to  sell  mortgaged 
property,  see  Dwightr.  Ames,  2  B.  R.  147  ; 
Stewart,  Id.  42  ;  Salmons,  Id.  19  ;  Colum- 
bian Metal  Works,  3  Id.  18;  Kahley,  4  Id. 
124 ;  Hanna,  Id.  39.  As  to  liquidation  of 
liens:  Winn,  1  B.  R.  131  ;  Schnepf,  6  Int. 
Rev.  Rec.  214;  Ilambright,  2  B.  R.  157; 
Armstrong  y.  Rickey,  2  Id.  150;  High,  3 
Id.  46  ;  restraint  of  action  of  lien  creditors 
for  collection  of  his  debt :  Donaldson,  6 
Int.  Rev.  Rec.  199 ;  but  where  an  execu- 
tion creditor  has  been  so  enjoined,  he  is 
entitled  to  a  summary  hearing  :  Hafer,  1 
B.  R.  163. 

The  assignee  cannot  make  up  out  of  the 
general  funds,  any  difference  between  the 
net  proceeds  of  the  sale  of  mortgaged  pro- 
perty, and  the  amount  due  the  mortgage 
creditor:  Purcell,  2  B.  R.  10.  See  also, 
Snedaker,  4  Id.  43.  If  the  property  con- 
stituting the  security  is  not  worth  the  sum 
due  the  secured  creditor,  the  assignee  has 
no  duties  in  regard  to  it:  Lambert,  2  B.  R. 
138.  A  lien  creditor  can  only  prove  for 
the  bahmce  of  his  debt  after  deducting  the 
value  of  the  property:  Winn,  1  B.  R.  131. 
See  also,  Bridgman,  Id.  59  ;  Bolton,  Id.  83. 
He  is  not  compelled  to  surrender  his  secu- 
rities before  proving  his  claim  ;  he  is 
deemed  a  general  creditor  after  they  are 
exhausted:  Ruehle,  2  B.  R.  175.  He  may 
also  make  proof  without  necessarily  ascer- 
taining the  value  of  his  securities :  Bigelow, 
1  B    R.  186. 

Where  encumbered  property  is  sold  by 
the  assignee,  the  lien  creditor  is  entitled 
to  the  proceeds,  deducting  only  the  cost  of 
proving  his  claim;  there  is  no  prior  claim 
thereon  for  the  general  expenses  in  bank- 
ruptcy :  Ilambright,  2  B.  R.  157.  A  cred- 
itor   secured  by  a  deed  of  trust   with  a 


power  of  sale,  must  prove  his  debt  as  one 
holding  security,  and  obtain  permission  of 
the  Court  to  have  the  security  sold.  A 
sale  made  without  such  permission  will  be 
set  aside  by  the  Court :  Davis  v.  Carpenter, 
2  B.  R.  125.  See  also,  Frizelle,  5  Id.  122  ; 
Lee  V.  Franklin  Avenue  German  Savings 
Institution,  3  Id.  53.  As  to  what  securities, 
sales,  conveyances,  liens,  &c.,  are  valid,  see 
York  &  Hoover,  3  B.  R.  163  ;  Griffiiths,  Id. 
179;  Scott,  Id.  181;  Jenkins  v.  Mayer,  Id. 
189;  Wynne,  4  Id.  5 ;  Freeman,  Id.  17; 
Potter  V.  Coggeshall,  Id.  19;  Fuller,  Id. 
29  ;  Hunger  &  Champlin,  Id.  90  ;  Weeks, 
Id.  116;  Fox  w.  Eckstein,  Id.  123;  Swope 
V.  Arnold,  5  Id.  148;  Vogle  v.  Lathrop, 
4  Id.  146  ;  Wood,  5  Id.  421  ;  Warren  v. 
Tenth  National  Bank,  Id.  479. 

A  creditor  who  has  a  lien  upon  the  pro- 
perty of  his  debtor  by  virtue  of  a  judg- 
ment, &c.,  by  filing  a  petition  for  adjudi- 
cation of  bankruptcy  of  such  debtor  with- 
out reference  to  such  lien,  thereby  waives 
and  relinquishes  the  same,  and  stands  be- 
fore the  Court  as  an  unsecured  creditor: 
Bloss,  4  B.  R.  37.  Security  taken  at  the 
time  of  advances  made  in  good  faith  to  an 
indebted  person  to  enable  him  to  carry  on 
his  business,  is  not  invalidated  by  either 
the  terms  or  policy  of  the  bankrupt  act, 
since  the  debtor  gets  a  present  equivalent 
for  the  new  debts  he  creates,  and  the  secu- 
rity he  gives:  Darby's  Trustees  v.  Boat- 
mens'  Saving  Institution,  4  B.  R.  195. 
Where  a  security  by  way  of  mortgage  is 
given  more  than  four  months  before  bank- 
ruptcy, a  change  in  the  form  or  even  in  the 
substance  of  the  deeds  made  within  four 
months  of  the  bankruptcy,  will  be  pro- 
tected if  no  greater  value  be  put  into  the 
creditor's  hands  at  that  time  than  he  had 
before:  Sawyer  v.  Turpin,  5  B.  R.  339. 


OF  BANKRUPTCY  OF  TRADERS.  150 

he  Avas  possessed  at  the  hour  when  he  committed  the  act  ;(n)  though  the 
legal  estate  in  the  bankrupt's  lands  remained  vested  in  him  until  con- 
veyed to  the  assignees  by  their  appointment.(o)  The  title  of  the  assignees, 
it  was  said,  related  back  to  the  act  of  bankruptcy.  The  consequences  of 
this  rule  were  formerly  very  serious,  as  mQ,nj  bond  fide  transactions  were 
overturned  in  consequence  of  an  act  of  bankruptcy  having  been  com- 
mitted by  one  of  the  parties  without  the  knowledge  of  the  other.  But 
after  several  partial  remedies,(p)  it  was  enacted  by  the  Act  of  1849,  that 
all  payments  really  and  bond  fide  made  by  any  bankrupt,  or  by  any  per- 
son on  his  behalf,  before  the  filing  of  a  petition  for  adjudication  of  bank- 
ruptcy, and  all  payments  really  and  bond  fide  made  to  any  bankrupt 
before  the  filing  of  such  petition,  and  all  conveyances  by  any  bankrupt 
bond  fide  made  and  executed  before  the  filing  of  such  petition,  and  all 
contracts,  dealings  and  transactions  by  and  with  any  bankrupt  really  and 
bond  '^fide  made  and  entered  into  before  the  filing  of  such  peti-  r^.-iF:-in 
tion,  and  all  executions  and  attachments  against  the  lands  and 
tenements  of  any  bankrupt  bond  fide  executed  by  seizure,  and  all  execu- 
tions and  attachments  against  the  goods  and  chattels  of  any  bankrupt 
bo7id  fide  executed  and  levied  by  seizure  and  sale  before  the  filing  of 
such  petition,  should  be  deemed  to  be  valid,  notwithstanding  any  prior 
act  of  bankruptcy  by  such  bankrupt  committed  ;  provided  the  person  so 
dealing  with  or  paying  to  or  being  paid  by  such  bankrupt,  or  at  whose 
suit  or  on  whose  account  such  execution  or  attachment  should  have  issued, 
had  not  at  the  time  of  such  payment,  conveyance,  contract,  dealing  or 
transaction,  or  at  the  time  of  executing  or  levying  such  execution  or 
attachment,  or  at  the  time  of  making  any  sale  thereunder,  notice  of  any 
prior  act  of  bankruptcy  by  him  committed. (^)  The  eifect  of  this  enact- 
ment was  to  substitute  the  filing  of  the  petition  for  adjudication  for  the  aet 
of  bankruptcy,  so  far  as  respects  all  persons  dealing  and  acting  bond  fide 
and  without  notice  of  the  act  of  bankruptcy.  On  this  subject  the  Bank- 
ruptcy Act,  1869,  now  contains  the  following  provisions.  It  enacts  that 
the  bankruptcy  shall  be  deemed  to  have  relation  back  and  to  commence  at 
the  time  of  the  act  of  bankruptcy, (r)^  and  then  provides  as  follows  : — 

(w)  Thomas  v.  Desanges,  2  B.  &  Aid.  58G  ;  Roach  v.  Great  Western  Railway  Com- 
pany, 1  Q.  B.  51  (E.  C.  L.  R.  vol.  41). 

(o)  Doe  d.  Esdaile  v.  Mitchell,  2  M    &  Sehv.  446. 

Ip)  Stat.  46  Geo.  III.  c.  135,  s.  1 ;  49  Geo.  III.  c.  121,  s.  2  ;  50  Geo.  III.  c.  137,  s.  1 ; 
6  Geo.  IV.  c.  16,  ss.  81,  82,  84 ;  2  &  3  Vict.  c.  11,  s.  12  ;  2  &  3  Vict.  c.  29. 

(y)  Stat.  12  &  13  Vict.  c.  106,  s.  133.         (r)  Stat.  32  &  33  Vict.  c.  71,  3.  11. 

^  See  ante,  p.  132,  note  2  b.  discharge  does  not  vest  in  the  assignee  : 

Property  acquired  by  the  bankrupt  be-     Patterson    6    Int.    Rev.    Rec,    157  ;   Levy, 

tween  the  filing  of  the  petition   and  the     Id.  163  ;  Roseufield,  1  B.  R.  60.     The  pro- 


151  OF    CnOSES    IN    ACTION. 

Nothing  in  tliis  act  contained  shall  render  invalid, — 

(1.)  Any  payment  made  in  good  faith  and  for  value  received  to  any 
bankrupt  before  the  date  of  the  order  of  adjudication  by  a  per- 
son not  having  at  the  time  of  such  payment  notice  of  any  act 
of  bankruptcy  committed  by  the  bankrupt,  and  available 
a<^ainst  him  for  adjudication  : 

(2.)  Any  payment  or  delivery  of  money  or  goods  belonging  to  a  bank- 
rupt,  made  to  such  ^bankrupt  by  a  depositary  of  such  money 
^  ""-^  or  foods  before  the  date  of  the  order  of  adjudication,  who 
had  not  at  the  time  of  such  payment  or  delivery  notice  of  any 
act  of  bankruptcy  committed  by  the  bankrupt,  and  available 
against  him  for  adjudication: 

(3.)  Any  contract  or  dealing  with  any  bankrupt,  made  in  good  faith 
and  for  valuable  consideration,  before  the  date  of  the  order  of 
adjudication,  by  a  person  not  having,  at  the  time  of  making 
such  contract  or  dealing,  notice  of  any  act  of  bankruptcy 
committed  by  the  bankrupt,  and  available  against  him  for 
adjudication. (s) 

Subject  and  without  prejudice  to  the  provisions  of  this  act  relating  to 
the  proceeds  of  the  sale  and  seizure  of  goods  of  a  trader,  and  to  the  pro- 
visions of  this  act  avoiding  certain  settlements,  and  avoiding,  on  the 
ground  of  their  constituting  fraudulent  preferences,  certain  conveyances, 
charges,  payments,  and  judicial  proceedings,  the  following  transactions 
by  and  in  relation  to  the  property  of  a  bankrupt  shall  be  valid,  notwith- 
standing any  prior  act  of  bankruptcy, — 

(1.)  Any  disposition  or  contract  with  respect  to  the  disposition  of  pro- 
perty by  conveyance,  transfer,  charge,  delivery  of  goods,  pay- 
ment of  money,  or  otherwise  howsoever  made  by  any  bank- 
rupt in  good  faith  and  for  valuable  consideration,  before  the 
date  of  the  order  of  adjudication,  with  any  person  not  having 
at  the  time  of  the  making  of  such  disposition  of  property  notice 
of  any  act  of  bankruptcy  committed  by  the  bankrupt,  and  avail- 
able against  him  for  adjudication  : 

(«)  Stat.  32  &  33  Vict.  c.  11,  s.  94. 

perty  of  a  bankrupt  vests  in  his  assignee  tliough  made  or  received  bond  fide  orwith- 

as   of  the  date  of  tlie  commencement  of  out    notice  :  Mays    v.    Manufacturers   Na- 

proceedings,  and  no  payment  by  or  to  him  tional  Bank  of  Philadelphia,  4  B.  R.  147. 
subsequent   to  that  date,   is   valid,   even 


OF  BANKRUPTCY  OF  TRADERS.  153 

(2.)  *Any  execution  or  attachment  against  the  land  of  the  p^-.  rq-i 
bankrupt,  executed  in  good  faith  by  seizure  before  the 
date  of  the  order  of  adjudication,  if  the  person  on  whose  ac- 
count such  execution  or  attachment  was  issued  had  not  at  the 
time  of  the  same  being  so  executed  by  seizure  notice  of  any 
act  of  bankruptcy  committed  by  the  bankrupt,  and  available 
against  him  for  adjudication  : 

(3.)  Any  execution  or  attachment  against  the  goods  of  any  bankrupt, 
executed  in  good  faith  by  seizure  and  sale  before  the  date  of 
the  order  of  adjudication,  if  the  person  on  whose  account  such 
execution  or  attachment  was  issued  had  not  at  the  time  of  the 
same  being  executed  by  seizure  and  sale  notice  of  any  act  of 
bankruptcy  committed  by  the  bankrupt,  and  available  against 
him  for  adjudication. (^) 

But  any  settlement  of  property  made  by  a  trader,  not  being  a  settle- 
ment made  before  and  in  consideration  of  marriage,  or  made  in  favor  of 
a  purchaser  or  incumbrancer  in  good  faith  and  for  valuable  consideration, 
or  a  settlement  made  on  or  for  the  wife  or  children  of  the  settlor  of 
property  which  has  accrued  to  the  settlor  after  marriage  in  right  of  his 
wife,  shall,  if  the  settlor  becomes  bankrupt  within  two  years  after  the 
date  of  such  settlement,  be  void  as  against  the  trustee  of  the  bankrupt 
appointed  under  the  act,  and  shall,  if  the  settlor  becomes  bankrupt  at 
any  subsequent  time  within  tern  years  after  the  date  of  such  settlement, 
unless  the  parties  claiming  under  such  settlement  can  prove  that  the 
settlor  was  at  the  time  of  making  the  settlement  able  to  pay  all  his  debts 
without  the  aid  of  the  property  comprised  in  such  settlement,  be  void 
against  such  trustee.^  *Any  covenant  or  contract  made  by  a  p^-,  r^,-, 
trader,  in  consideration  of  marriage,  for  the  future  settlement  ^ 

upon  or  for  his  wife  or  children  of  any  money  or  property  wherein  Ke 
bad  not  at  the  date  of  his  marriage  any  estate  or  interest,  whether 
vested  or  contingent,  in  possession  or  remainder,  and  not  being  money 
or  property  of  or  in  right  of  his  wife,  shall,  upon  his  becoming  bankrupt 
before  such  property  or  money  has  been  actually  transferred  or  paid  pur- 
suant to  such  contract  or  covenant,  be  void  against  his  trustee  appointed 
under  the  act.  "  Settlement"  shall  for  the  purposes  of  this  sectioa 
include  any  conveyance  or  transfer  of  property. (m) 

And  every  conveyance  or  transfer  of  property,  or  charge  thereou 

{t)  Stat.  32  &  33  Vict.  c.  71,  s.  95.         *  (m)  Sect.  91. 

1  See  Sedgwick  v.  Place,  5  B.  R.  168 ;  Antrims  v.  Kelly,  4  Id,  189. 
14 


154 


OF    CIIOSES    IN    ACTION. 


made,  every  payment  made,  every  obligation  incurred,  and  every  judi- 
cial proceeding  taken  or  suflfcred  by  any  person  unable  to  pay  his  debts 
as  they  become  due  from  his  own  moneys  in  favor  of  any  creditor,  or  any 
person  in  trust  for  any  creditor,  with  a  view  of  giving  such  creditor  a 
preference  over  the  other  creditors,  shall,  if  the  person  making,  taking, 
paying,  or  suffering  the  same  become  bankrupt  within  three  months  after 
the  date  of  making,  taking,  paying,  or  suffering  the  same,  be  deemed 
fraudulent  and  void  as  against  the  trustee  of  the  bankrupt  appointed 
under  this  act ;'  but  this  section  shall  not  affect  the  rights  of  a  pur- 


1  See  ante,  p.  132,  note  3  h. 
The  assignee  may  recover  property  con- 
veyed by  bankrupt  in  fraud  of  creditors 
before  the  passage  of  the  Bankrupt  Act : 
Bradshaw  v.  Klein,  1  B.  R.  14G.  As  to  re- 
covery of  property  fraudulently  disposed 
of,  see  Ncal,  2  B.  R.  82  ;  Meyer,  Id.  137  ; 
Wilson  V.  Brinkman,  Id.  149  ;  Metzgcr,  Id. 
114.  The  assignee  cannot  recover  the 
value  of  property  transferred  by  the  bank- 
rupt within  four  months  of  adjudication, 
without  showing  that  a  preference  was 
thereby  intended :  Wadsworth  v.  Tyler, 
2  B.  R.  101. 

it  is  of  no  consequence  whether  a  pref- 
erence given  to  a  creditor  is  voluntary  or 
the  result  of  threats :  Foster  v.  Hackley, 
2  Am.  L.  T.  Bank.  8  ;  Wilson  v.  Brinkman, 
2  B.  R.  149;  Rison  v.  Knapp,  4  Id.  114; 
Batchelder,  3  Id.  37. 

Although  the  term  endorser  is  not  spe- 
cifically used  in  the  35th  section  of  the 
Bankrupt  Act,  in  regard  to  preferences, 
yet  any  payment  or  preference  to  an 
endorser  or  other  surety  is  fraudulent  and 
void,  where  other  elements  exist  in  the 
transaction  to  give  it  that  character :  Ahl 
V.  Thorner,  3  B.  R.  29. 

To^  constitute  a  fraudulent  preference, 
when  the  alleged  bankrupt  is  claimed  to 
be  insolvent,  he  mast  so  be,  and  know 
himself  so  to  be,  and  actually  intend,  and 
actually  give,  a  preference  to  a  creditor : 
Keys,  3  B.  R.  54. 

Reasonable  cause,  which  should  induce 
a  belief  on  fhe  part  of  a  creditor,  of  the 
insolvency  of  his  debtor,  means  such  a 
state  of  facts,  as  would  put  a  prudent 
man  upon  inquiry  as  to  the  condition  of 


his  debtor:  White  v.  Raftery,  3  B.  R.  53. 
See  also  as  to  this,  Stranahan  v.  Gregory, 
4  Id.  142  ;  Campbell  v.  Traders'  National 
Bank,  3  Id.  124.  Where  a  creditor  has 
before  him  what  the  statute  declares  shall 
he.  privia  facie  evidence  of  fraud,  he  must 
in  law  be  deemed  to  have  reasonable  cause 
to  believe  the  existence  of  such  fraud, 
until  the  legal  presumption  is  overborne 
'by  opposing  evidence  :  Kingsbury,  3  B.  R. 
84.  Where  a  creditor  accepts  a  security, 
he  is  conclusively  presumed  to  know  what 
appears  on  its  face,  and  to  have  reasonable 
cause  to  believe  it  was  intended  to  accom- 
plish its  ordinary  and  necessary  effect : 
Graham  v.  Stark,  3  B.  R.  93. 

As  to  what  are,  conveyances  to  hinder 
and  delay  creditors,  fraudulent  preferences, 
invalid  judgments,  executions,  &c.,  see  Gil- 
lespie V.  McKnight,  3  B.R.  117  ;  Adams,  Id. 
139J;  Briggs  v.  Moore,  Id.  149 ;  Doyle,  Id.  158 ; 
Chamberlain,  Id.  174;  Samson  v.  Burton, 
4  Id.  1;  Dumont,  Id.  4;  Tonkin  &  Tre- 
wartha,  Id.  13  ;  Terry  &  Cleaver,  Id.  33  ; 
Bloss,  Id.  37;  Street  v.  Dawson,  Id.  60 ; 
Allen  V.  Massey,  Id.  75 ;  Wilson  v.  Stod- 
dard, Id.  76;  Martin  v.  Smith,  Id.  83; 
Butler,  Id.  91  ;  Beattie  v.  Gardner,  Id.  106; 
Rison  V.  Knapp,  Id.  114;  Kahley,  Id.  124; 
Smith  V.  Buchanan,  Id.  133 ;  Vogle  v. 
Lathrop,  Id.  146;  Gregg,  Id.  150;  Beers 
V.  Placer,  Id.  150  ;  Martin  v.  Toof,  Id.  158  ; 
Eldridge,  Id.  162;  Shaffer  v.  Fritchery, 
Id.  179;  Antrims  V.  Kelly,  Id.  189  ;  Second 
Nat.  Bank  of  Leavenworth  v.  Hunt,. Id. 
198  ;  Keating  v.  Keefer,  5  Id.  133  ;  Hall  v. 
Wager,  Id.  181 ;  Haskell  v.  Ingalls,  Id. 
205;  Harvey  v.  Crane,  Id.  218;  Scammon 
V.  Cole,  Id.  257 ;  Wilson  v.  City  Bank  of 


OF    BANKRUPTCY    OF   TRADERS. 


154 


chaser,  payee  or  incumbrancer  in  good  faith  and  for  valuable  considera- 
tion, (v) 


In  the  payment  of  dividends  no  preference  is  given  on  account  of 
the  nature  of  the  debt,  whether  judgment  debt,  bond  debt,  specialty 
or  simple  contract.  In  this  respect  the  Court  of  Chancery,  to 
which  the  jurisdiction  in  bankruptcy  anciently  belonged,  and  which 
now  exercises  an  appellate  jurisdiction, (a;)  followed  its  rule  that 
*equality  is  equity.^  The  crown,  however,  may  enforce  pay- 
ment of  the  entire  debt  of  a  bankrupt  crown  debtor,  notwith-    ■-         -' 


(?')  Stat.  32  &  33  Vict.  c.  71,  s.  92. 


(x)  Sect.  71. 


St.  Paul,  Id.  270  ;  Lawrence  v.  Graves,  Id. 
279  ;  Hood  v.  Karper,  28  Leg.  Int.  340  ;  s.  c. 
5  B.  R.  358  ;  Post  v.  Corbin,  Id.  12  ;  Cook- 
inham  v.  Morgan,  Id.  16 ;  Sawyer  v.  Tur- 
pin.  Id.  339;  Hunt,  Id.  433;  Darby's 
Trustees  v.  Lucas,  Id.  437 ;  Sansom  v. 
Burton,  Id.  459. 

Transfers  made  out  of  the  ordinary 
course  of  business  of  a  debtor  are  prima 
facie  fraudulent,  and  in  an  action  by  an 
assignee  in  bankruptcy  of  such  a  debtor, 
to  impeach  a  transaction  involving  such  a- 
transfer,  the  burden  of  proof  is  upon  the 
defendant  to  show  its  validity :  Collins  v. 
Bell,  3  B.  R.  146  ;  Wilson  v.  Stoddard,  4  Id. 
76.  The  first  subdivision  of  section  35  of 
the  Bankrupt  Act,  with  its  limitation  of 
four  months,  applies  only  to  cases  of  pay- 
ments or  convej^ances  made  to  a  creditor, 
in  consideration  of  pre-existing  debts,  by 
way  of  preference ;  while  the  second  sub- 
division, with  its  limitation  of  six  months, 
applies  to  other  transfers  and  conveyances 
made  contrary  to  the  provisions  and  policy 
of  the  Bankrupt  Act,  or  in  fraud  of  the  act ; 
but  where  a  payment  or  conveyance,  or 
other  transaction,  is  fraudulent  by  any 
general  rule  of  law  other  than  that  spe- 
cified in  the  said  35th  section,  the  assignee 
may  sue  within  two  years.  The  pro- 
visions of  section  39  avoiding  certain  acts, 
ar&  subject  to  the  limitations  of  four  and 
six  months  contained  in  section  35  :  Bean 
V.  Brookmire,  4  B.  R.  57  ;  Maurer  v.  Frantz, 
Id.  142. 

The  preference  upon  a  judgment  note  is 


not  obtained  when  the  warrant  of  attorney 
is  given,  but  when  the  judgment  upon  it 
is  entered :  Golson  v.  Neihoff,  5  B.  R.  56  ; 
Hood  V.  Karper,  28  Leg.  Int.  340 ;  s.  c.  5 
B.  R.  358 ;  see  also  Lord,  Id.  318. 

An  endorser  of  a  note  who  receives 
none  of  the  proceeds  of  the  same,  and 
whose  contingent  liability  never  becomes 
absolute,  cannot  be  compelled  to  pay 
to  the  bankrupt's  assignee,  the  amount  of 
the  note  paid  by  the  bankrupt  to  the 
holder,  and  while  the  debtor  was  still 
carrying  on  business:  Bean  v.  Laflin,  5 
B.  R.  333. 

^  See  ante,  p.  132  note  2/. 

Judgment  creditors  have  no  priority  in 
distribution,  but  share  joro  rata  with  other 
creditors:  Erwin  &  Hardee,  3  B.  R.  142. 
When  trust  property  does  not  remain  in 
specie,  but  has  been  made  way  witla  by  a 
bankrupt  trustee,  the  cestui  que  trust  has 
no  longer  a  specific  remedy  against  the 
estate  in  bankruptcy,  but  must  come  in 
pari  passu  with  the  other  creditors  :  Jane- 
way,  4  B.  R.  26.  See  also  Ungewitter  v. 
Von  Sachs,  3  Id.  178. 

As  to  claims  for  wages,  see  Brown,  3  B. 
R.  177;  Harthorn,  4  Id.  27. 

Where  commercial  paper  is  endorsed  by  a 
firm  in  its  firm  name,  and  also  by  the  in- 
dividual names  of  one  or  more  members 
of  the  firm,  and  the  makers  thereof  become 
embarrassed,  and  bankruptcy  ensues  to 
the  endorsers,  and  the  liolders  accept,  with 
permission  of  the  Court,  forty  per  cent, 
from  the  makers,  they  are  only  entitled  to 


155  OF    CHOSES   IN   ACTION. 

Standing  the  bankrupt  laws.(y)  And  a  judgment  debt,  if  entered  up 
one  year  at  least  before  the  bankruptcy,  was,  by  the  statute  for  extending 
the  remedies  of  creditors,  a  charge  in  equity  on  all  the  bankrupt's  real 
estate.(2)  But  this  was  altered  with  respect  to  all  judgments  entered 
up  after  the  29th  July,  18G4,  the  date  of  the  act  to  amend  the  law  re- 
lating to  future  judgments,  statutes  and  recognisances. (a)  The  landlord 
of  a  bankrupt  might,  notwithstanding  an  act  of  bankruptcy,  distrain  for 
his  rent,  not  exceeding  one  year's  rent  accrued  prior  to  the  day  of  the 
filing  of  the  petition  for  adjudication. (5)  And  the  present  act  contains, 
as  we  have  seen,  a  provision  to  the  same  effect. (c)  The  wages  or  salary 
of  a  clerk  or  servant  of  the  bankrupt,  for  any  time  not  exceeding  three 
calendar  months  and  not  exceeding  SOL,{d)  and  also  the  wages  of  any 
laborer  or  workman  not  exceeding  40s.,  might,  by  the  Act  of  1849,  be 
ordered  by  the  court  to  be  paid  in  full  ;{e)  and  the  present  act  extends 
this  exception  to  four  months'  wages  or  salary  of  a  clerk  or  servant,  not 
exceeding  ffti/  pounds,  and  to  the  wages  of  any  laborer  or  workman 
not  exceeding  two  months'  wages. (/)  It  also  gives  priority  to  rates  and 
taxes  due  from  the  bankrupt  for  twelve  months  preceding.(^)  The  bank- 
rupt is  entitled  to  any  surplus  remaining  after  payment  of  his  creditors 
and  the  costs  of  the  bankruptcy. (A)^ 

r*1  '^Cl  *^^  ^^^  bankrupt  had  duly  surrendered  and  conformed  to 
the  bankrupt  law,  he  was  formally  entitled  to  a  certificate  of  con- 
formity, by  which  he  was  discharged  from  all  debts  due  by  him  when  he 
became  bankrupt,  and  from  all  claims  and  demands  made  provable  under 
the  bankruptcy.(2)     Formerly  the  certificate  was  required  to  be  signed  by 

{y)  Anon.,  1  Atk.  262;  stat.  32  &  33  Vict.  c.  71,  s.  49. 

(z)  Stat.  1  &  2  Vict.  c.  110,  s.  13  ;  Ex  parte  Boyle,  3  De  G.  M.  &  G.  515;  s.  c.  17 
Jur.  979. 

(a)  Stat.  27  &  28  Vict.  c.  112,  s.  1. 

(6)  Stat.  12  &  13  Vict.  c.  106,  s.  129;  Paull  v.  Best,  3  B.  &  S.  537  (E.  C.  L.  R.  vol. 
113). 

(c)  Stat.  32  &  33  Vict.  c.  71,  s.  34,  ante,  p.  148. 

(d)  Stat.  12  &  13  Vict.  c.  106,  s.  168.  {e)  Sect.  169. 
(/)  Stat.  32  &  33  Vict.  c.  71,  s.  32.  (c,)  Sect.  32. 

{h)  Sect.  45.  (i)  Stat.  12  &  13  Vict.  c.  106,  ss.  199,  200. 


a  dividend  against  tlie  endorsers  individu-  there  is  reasonable  cause  to  believe  that 

ally,  and  as  a  firm,  to  an  amount  equal  to  none  will  be  proved,  are  to  be  paid  to  the 

their  claim,  after  deducting  the  forty  per  bankrupt,  upon  the  filing  of  a  petition* by 

cent,  received  from  the  makers:  Howard  him,  setting  forth  his  reasons  for  believing 

Cole  &  Co.,  4  B.  R.  185.  that   no   creditors   desire   to   prove   their 

1  Surplus  funds  in  the  hands  of  the  as-  debts,  and  asking  that  the  funds  shall  be 

signee,    after    settlement    of   the    estate,  paid  to  him :  Hoyt,  3  B.  R.  13. 
"vrhexe   no  debts   have   been  proved,  and 


OF   BANKRUPTCY  OF   TRADERS. 


156 


a  given  proportion  of  the  creditors  ;{k)  but,  by  the  Act  of  1849,  the 
court  was  constituted  the  sole  judge  of  any  objections  which  might  be 
made  by  any  creditors  against  allowing  the  certificate ;  and  the  court 
might  either  allow  the  same  or  refuse  or  suspend  the  allowance  thereof, 
or  annex  such  conditions  thereto  as  the  justice  of  the  case  might  require. (Z) 
The  certificates  were  by  this  act  divided  into  three  classes.  If  the  bank- 
ruptcy had  arisen  from  unavoidable  losses  and  misfortunes,  the  bankrupt 
was  entitled  to  a  certificate  of  the  first  class.  If  the  bankruptcy  had 
not  wholly  arisen  from  unavoidable  losses  and  misfortunes,  he  was  entitled 
to  a  certificate  of  the  second  class.  And  if  the  bankruptcy  had  not 
arisen  from  unavoidable  losses  or  misfortunes,  he  was  only  entitled  to  a 
certificate  of  the  third  class.(m)  But  all  classification  of  certificates  was 
abolished  by  the  Bankruptcy  Act,  1861  ;(w)  and  the  bankrupt,  if  he  had 
properly  conducted  himself,  became  entitled  to  an  order  of  discharge, 
which  discharged  him  from  all  debts,  claims  or  demands,  provable  under 
his  bankruptcy. (o)  The  Bankruptcy  Act,  1869,  now  contains  the  follow- 
ing provisions  with  respect  to  the  order  of  discharge.^     When  a  bank. 


{k)  Stat.  6  Geo.  IV.  c.  16,  s.  122. 

{m)  Stat.  12  &  13  Vict.  c.  106,  sched  Z. 

(o)  Sect.  161. 


(Z)  Stat.  12  &  13  Vict.  c.  106,  s.  198. 
{n)  Stat.  24  &  25  Vict.  c.  134,  s.  157. 


1  See  ante,  p.  132,  note  2  g. 

If  there  be  no  assets,  the  bankrupt  may- 
apply  for  a  discharge  at  the  expiration  of 
sixty  days,  though  debts  have  been  proved  : 
Woolums,  1  B.  R.  131.  When  debts  are 
proved  and  there  are  assets,  application 
for  a  discharge  can  not  be  filed  before  the 
expiration  of  six  months  from  the  adjudi- 
cation:  Bodenheim,  2  B.  R.  133.  When 
at  the  time  of  the  application  for  a  dis- 
charge, the  assignee  has  neither  received 
nor  paid  any  money^s  on  account  of  the 
estate,  the  case  is  to  be  regarded  as  one  in 
which  no  assets  have  come  to  his  hands  : 
Dodge,  1  B.  R.  115.  See  also  Solis,  3  Id. 
186.,  It  is  only  where  the  bankrupt  can 
apply  for  his  discharge  within  less  than 
six  months  from  the  adjudication,  that  he 
must  apply  within  a  year  :  Greenfield,  2 
B.  R.  98,  100.  See  also  Willmott,  Id. 
7&;  Schenck,  5  Id.  93.  See  also  Martin, 
2  Id.  169, — where  it  was  held  (no  assets 
having  come  to  the  hands  of  the  assignee), 
that  failure  to  make  application  for  a  dis- 
charge within  one  year  after  the  adjudica- 


tion, would  preclude  a  discharge,  the  pro- 
visions of  the  statute  in  this  respect  being 
not  merely  directory,  but  an  absolute  re- 
quirement ;  and  Canaday,  3  B.  R.  3, — where 
it  was  held,  that  it  was  discretionary  with 
the  Court  to  grant  or  withhold  a  discharge, 
when  the  application  therefor  is  not 
made  within  a  year.  But  refusal  of  a  dis- 
charge because  the  application  is  not 
made  in  time,  is  no  bar  to  new  proceed- 
ings :  Farrell,  5  B.  R.  125.  False  swearing 
by  the  bankrupt  in  the  affidavit  annexed 
to  his  petition,  must  be  shown  to  be  inten- 
tional in  order  to  bar  his  discharge  :  Wy- 
att,  2  B.  R.  94.  See  also  Keefer,  4  Id. 
126  ;  Smith  &  Bickford,  5  Id.  20.  Omis- 
sion of  names  of  certain  creditors  with 
their  knowledge  and  consent,  will  not  bar 
a  discharge  on  the  objection  of  other 
creditors:  Needham,  2  B.  R.  124.  Where 
the  property  of  the  debtor  has  been  at- 
tached by  a  hostile  creditor,  without  the 
knowledge  of  the  debtor,  his  subsequent 
omission  to  have  himself  adjudged  a  vol- 
untary bankrupt,  will   not  be  deemed  evi- 


156 


OF   CIIOSES   IN   ACTION. 


ruptey  is  closed,  or  at  any  time  during  its  continuance,  -with  the  assent 
of  the  creditors  testified  by  a  special  resolution,  the  bankrupt  may  apply 


dence  of  his  intent  to  give  a  preference,  so 
as  to  bar  a  dischargre :  Belden,  2  B.  R.  14. 
One  who  ^\-as  notlv  creditor  at  the  time  of 
an  allefred  fraudulent  removal  of  property, 
or  whose  claim  was  then  barred  by  the 
statute  of  limitations,  cannot  oppose  a 
discharge  on  the  ground  of  such  fraudu- 
lent removal  :  Burk,  3  B.  R.  76.  A  fraudu- 
lent sale  before  the  passage  of  the  Bankrupt 
Act,  is  in  itself  insufficient  to  bar  a  dis- 
charge :  Hussman,  2  B.  R.  140  ;  Rosenfield, 
1  Id.  161.  See  also  Keefer,  4  Id.  126. 
But  see  contra :  Cretiew,  5  B.  R.  423, 
where  it  was  held  that  the  operation  of 
the  provisions  of  the  29th  section  of  the 
Bankrupt  Act,  as  to  fraudulent  preferences, 
&c.,  which  will  bar  a  discharge,  is  not 
confined  to  transactions  occurring  after 
the  passage  of  the  act.  As  to  what  acts 
amount  to  a  fraudulent  preference  so  as 
to  baradischarge,see  Rosenfeld,  Jr.,  2  B.  R. 
49  ;  Lewis  v.  Rosenham,  Id.  14.5  ;  Warner, 
5  Id.  414.  Where  a  debtor  knows,  or  in 
reason  ought  to  know,  that  he  is  insolvent, 
and  makes  payment  of  an  independent 
debt,  not  in  the  course  of  trade,  and  with- 
out the  creditor's  knowledge  of  such 
insolvency,  it  is  a  fraudulent  preference, 
and  bars  a  discharge:  Gay,  2  B.  R.  114. 
But  a  discharge  will  not  be  withheld,  when 
it  appears  solely  from  the  bankrupt's  ex- 
amination,  that  he  had  paid  certain  debts 
in  full,  a  short  time  before  he  became 
bankrupt,  no  other  proof  being  offered  to 
show  that  such  payments  were  fraudulent 
preferences :  Burgess,  3  B.  R.  47.  The 
fair  and  reasonaVjle  construction  of  section 
29  of  the  Bankrupt  Act  of  the  United 
States,  is,  that  it  refuses  a  discharge  on 
the  ground  of  preference,  only  when  the 
act  is  brought  within  the  definition  of 
section  35,  or  section  29  itself.  Under 
the  latter,  it  must  be  proved  that  bank- 
ruptcy was  in  contemplation,  and  under 
the  former,  that  the  creditor  was  a  party 
to  the  fraud  :  Lock,  2  B.  R.  123. 

Any  creditor  may  oppose  the  discharge, 
whether  he  has  proved  his   debt  or  not: 


Sheppard,  1  B.  R.  115 ;  Boutelle,  2  Id.  51 ; 
(but  the  debt  must  be  provable,  Murdock 
3  B.  R.  3G.)  Contra :  Levy,  1  Id.  66  ;  Pal- 
mer, 3  Id.  77.  Specifications  of  grounds  of 
opposition  to  a  discharge  must  be  rea- 
sonably definite ;  otherwise  they  will  be 
disregarded  :  Rathbone,  1  B.  R.  50 ;  Hill, 
Id.  42  ;  Beardsley,  Id.  52.  Upon  the  trial 
of  questions  of  fact  arising  in  opposition 
to  a  discharge,  the  burden  of  proof  is  on 
the  creditor:  Hill,  1  B.  R.  42.  See  also 
Orcutt,  4  B.  R.  176;  Williams,  Id.  187. 
As  the  discharge  does  not  bar  a  debt 
created  by  fraud,  the  existence  of  such 
debt  is  no  ground  for  refusal  of  the  dis- 
charge:  Rosenfield,  1  B.  R.  161.  See  also 
Patterson,  1  B.  R.  58;  Stokes,  2  Id.  76. 
That  the  creditor's  debt  is  a  fiduciary  one, 
is  no  ground  for  withholding  the  dis- 
charge, such  debt  not  being  affected 
thereby:  Tracy,  2  B.  R.  98.  The  balance 
due  by  a  factor  to  his  principal,  is  a  fidu- 
ciary debt  within  the  meaning  of  the  act: 
Seymour,  6  Int.  Rev.  Rec.  60  ;  Kimball,  2 
B.  R.  74.  See  as  to  this.  Chapman  v.  For- 
syth, 2  How.  202  ;  Lenke  v.  Booth,  5  B.  R. 
351.  Where  a  creditor  was  not  named  in 
the  bankrupt's  schedules,  and  such  credi- 
tor after  discharge  granted  in  bankruptcj-, 
attached  by  garnishee  process  property  of 
the  bankrupt  shown  in  evidence  to  have 
been  concealed  from  the  Bankrupt  Court, 
it  was  held  that  the  certificate  of  discharge 
did  not  bind  the  creditor,  and  was  no 
defence  to  his  action,  on  the  ground  that 
it  had  been  fraudulently  obtained :  Barnes 
V.  Moore,  2  B.  R.  174.  A  creditor  may  set 
up  a  fraudulent  concealment  by  the  bank- 
rupt of  his  property,  against  the  certificate 
of  discharge,  in  whatever  court  it  may  be 
pleaded:  Perkins  v.  Gay,  3  B.  R.  189;  but 
see  Corey  v.  Ripley,  4  B.  R.  163, — where 
it  was  held  that  a  discharge  duly  granted, 
when  pleaded  in  bar  to  the  further  main- 
tenance of  an  action  for  prior  indebtedness, 
in  a  State  Court,  could  not  be  impeached 
in  such  Court,  for  any  cause  which  would 
have  prevented  the  granting  of  it,  or  have 


OF   BANKRUPTCY    OF   TRADERS. 


156 


to  the  court  for  an  order  of  discharge  ;  but  *such  discharge  shall    p^-  ---. 
not  be  granted  unless  it  is  proved  to  the  court  that  one  of  the 


been  sufficient  for  annulling  it,  under  the 
bankrupt  act ;  and  that  the  power  to  set 
aside  and  annul  a  discharge  thereby  con- 
ferred upon  the  Federal  Courts,  was  in- 
compatible with  the  exercise  of  the  same 
power  by  a  State  Court,  and  that  the 
former  was  paramount. 

The  omission  of  a  merchant  or  trades- 
man, since  the  passage  of  the  act,  to  keep 
proper  books  of  account,  will  bar  a  dis- 
charge, whether  such  omision  was  wilful 
or  fraudulent  or  not:  Solomon,  2  B.  R.  94. 
As  to  the  requirement  of  keeping  books, 
see  Nooman,  3  B.  R.  63;  Gay,  2  Id.  114; 
White,  2  Id.  119 ;  Keach,  3  Id.  3  ;  Littlefield, 
Id.  13  ;  Bellis,  Id.  124  ;  Murdock,  4  Id.  17  ; 
Tyler,  Id.  27  ;  Bound,  Id.  164 ;  Burgess,  3  Id. 
147  ;  Coolidge,  Id.  71.  See  as  to  conceal- 
ment of  property  previouslj^  assigned  by  a 
bankrupt,  or  of  his  interest  in  a  joint 
estate,  as  a  bar  to  his  discharge,  Beal,  2 
B.  R.  178.  A  bankrupt  is  not  entitled  to 
a  discharge,  unless  he  proves  satisfactorily 
that  he  could  not  obtain  his  wife's  attend- 
ance, upon  an  order  made  for  her  examin- 
ation :  Van  Tuyl,  2  B.  R.  177.  The  dis- 
charge itself  terminates  an  injunction 
staying  proceedings  in  a  state  court,  notice 
to  dissolve  being  unnecessary  :  Thomas,  3 
B.  R.  7.  A  voluntary  assignment  for  the 
benefit  of  creditors  is  a  bar  to  a  discharge  : 
Goldschmidt,  3  B.  R.  41.  But  see  Pierce 
&  Holbrook,  Id.  61,  where  it  was  held 
that  an  assignment  for  the  benefit  of 
creditors  without  any  preference,  sixteen 
days  before  the  filing  of  the  debtor's  peti- 
tion, and  when  a  creditor  proceeding  ad- 
versarily  was  about  to  obtain  a  judgment, 
was  not,  in  the  absence  of  actual  fraud,  a 
bar  to  a  discharge. 

Creditors,  who  have  ratified  such  an  as- 
signment, by  joining  in  an  agreement  for 
the  substitution  of  another  assignee,  are 
estopped  from  objecting  to  the  bankrupt's 
discharge,  on  the  ground  of  the  making  of 
such  assignment :  Schuyler,  2  B.  R.  169. 

If  the  court,  upon  examining  the  record, 
upon  an  application  for  a  final  discharge, 


perceive  that  the  bankrupt  has  done  any 
act,  which  under  the  statute  would  be  a 
bar  to  the  granting  of  the  certificate,  it 
will  refuse  the  discharge,  although  no 
creditor  appear  in  opposition:  Schoo,  3  B. 
R.  52  ;  Wilkinson,  Id.  74.  Until  a  bank- 
rupt has  made  full  and  sufficient  disclos- 
ures, his  creditors  or  the  assignee,  cannot 
be  required  to  specify  objections  to  his 
discharge,  or  definitively  abide  by  objec- 
tions, which  may  have  been  specified: 
Long,  3  B.  R.  66. 

Where  a  bankrupt  has  been  arrested 
on  process  issuing  out  of  a  State  Court, 
the  U.  S.  District  Court,  upon  an  applica- 
tion of  the  bankrupt  to  be  discharged  from 
such  arrest  pending  the  bankruptcy  pro- 
ceedings, cannot  properly  inquire  into  the 
fact  whether  the  debt  or  claim,  upon  which 
the  order  of  arrest  was  founded,  was  or  was 
not  one  from  which  the  bankrupt  would 
be  discharged  by  a  discharge  in  bankruptcy, 
or  whether  the  bankrupt  was  liable  by  the 
state  law  to  arrest ;  but  can  only  determine 
whether  the  State  Court  in  its  order  of 
arrest,  intended  to  found  it  on  a  claim  or 
debt  not  dischargeable  in  bankruptcy : 
Valk,  3  B.  R.  73. 

Where  a  bankrupt  omitted  to  include  in 
his  schedule,  a  statement  of  an  interest  in 
an  estate  in  expectancy  under  a  will,  his 
discharge  was  refused  until  an  amendment, 
for  which  leave  was  granted  :  Connell,  Jr., 
3  B.  R.  113. 

Section  33d  of  the  U.  S.  Bankrupt  Act 
(in  relation  to  the  requirement  of  the  pay- 
ment of  fifty  per  cent.,  or  the  obtaining 
consent  of  creditors  as  a  requisite  to  dis- 
charge), should  be  construed  in  relation  to 
the  word  assets,  as  if  it  read  ;  "  The  pro- 
ceeds of  the  bankrupt's  property  in  the 
hands  of  the  assignee,  and  subject  to  be 
divided  among  his  creditors,  must  be  equal 
to  fifty  per  cent,  of  claims,"  &c.:  Fred- 
erick, 3  B.  R.  117  ;  Webb,  Id.  177  ;  see  also 
Borden,  5  Id.  128;  Graham,  Id.  155. 
The  section  referred  to  is  applicable  as 
well  to  involuntary  as  to  voluntary  pro- 


157 


OF   CIIOSES   IN   ACTION. 


following  conditions  has  boon  fulfilled,  that  is  to  say,  either  that  a  divi- 
dend or  not  less  than  ten  shillings  in  the  pound  has  been  paid  out  of  his 
property,  or  might  have  been  paid  except  through  the  negligence  or  fraud 
of  the  trustee,  or  that  a  special  resolution  of  his  creditors  has  been 
passed  to  the  effect  that  his  bankruptcy  or  the  failure  to  pay  ten  shillings 
in  the  pound  has,  in  their  opinion,  arisen  from  circumstances  for  which  the 
bankrupt  cannot  justly  be  held  responsible,  and  that  they  desire  that  an 
order  of  discharge  should  be  granted  to  him.  And  the  court  may  suspend 
for  such  time  as  it  deems  to  be  just,  or  withhold  altogether,  the  order  of  dis- 
charge in  the  circumstances  following :  namely,  if  it  appears  to  the  court 
on  the  representation  of  the  creditors  made  by  special  resolution,  of  the 
truth  of  which  representation  the  court  is  satisfied,  or  by  other  sufficient 
evidence,  that  the  bankrupt  has  made  default  in  giving  up  to  his  cred- 
itors the  property  which  he  is  required  by  this  act  to  give  up ;  or  that  a 
prosecution  has  been  commenced  against  him  in  pursuance  of  the  pro- 
visions relating  to  the  punishment  of  fraudulent  debtors,  contained  in 
the  "Debtors  Act,  1869, "(jt?)  in  respect  of  any  offence  alleged  to  have 
been  committed  by  him  against  the  said  a,ct.{q) 

(q)  Stat.  32  k  33  Vict.  c.  71,  s.  48. 


(p)  Stat.  32  &  33  Vict.  c.  62,  ante,  p.  103. 

ceedings:  Bunster,  5  B.  R.  82.  It  is 
no  ground  of  objection  to  the  dis- 
charge of  a  bankrupt,  that'  he  has  caused 
and  permitted  the  loss,  waste  and  de- 
struction of  his  estate  and  effects,  and 
misspent  and  misused  the  same,  unless 
such  loss,  &c.,  occurred  after  the  filing  of 
the  petition.  The  buying  of  goods  fraud- 
ulently, or  when  the  debtor  knew  that  he 
could  not  pay  for  them,  is  not  a  fraud, 
which  will  prevent  his  discharge  :  Rogers, 
3  B.  R.  139.  Want  of  jurisdiction  is  a 
good  ground  of  refusal  of  a  discharge : 
Penn,  3  B.  R.  145.  A  bankrupt,  who  has 
omitted  to  apply  for  a  stay  of  proceedings 
in  an  action  against  him,  pending  the  ques- 
tion of  his  discharge,  may  nevertheless 
apply  after  judgment,  to  have  supplement- 
ary proceedings  thereon  stayed,  on  the 
ground  that  he  has  been  discharged,  if  the 
plaintiff's  demand  be  one  affected  by  the 
discharge  :  World  Company  v.  Brooks,  3  B. 
R.  146.  A  discharge  will  not  be  refused, 
simply  because  the  publication  of  the 
assignee's  notice  of  appointment  was 
omitted  to  be  made:  Strachan,  3  B.  R. 
148.  But  see  Bushey,  Id.  167,  where  it  was 
held  that  proper  notice  must  be  given  by 


the  assignee  to  creditors,  and  that  the 
omission  of  it  would  render  the  bank- 
rupt liable  to  lose  his  right  to  a  dis- 
charge :  see  also  Bellamy,  6  Int.  Rev. 
Rec.  86.  As  to  application  for  an- 
nulling discharge:  see  Stetson,  3  B.  R. 
179.  Spending  property  in  gaming,  which 
if  not  so  spent  might  be  assets,  will  bar  a 
discharge  :  Marshall,  4  B.  R.  27.  It  is  not 
necessary  for  a  bankrupt  to  obtain  consent 
to  his  discharge  by  creditors,  to  whom  he 
is  liable  as  an  endorser.  Such  liability, 
although  fixed,  is  a  secondai-y  and  not  a 
principal  one,  till  judgment  has  been  ob- 
tained against  him  by  due  process  of  law: 
Loder,  4  B.  R.  50.  The  mere  omission  of 
the  name  of  a  creditor  on  the  schedule  of 
a  bankrupt,  is  not  a  substantive  ground  for 
preventing  or  avoiding  his  discharge  as  to 
such  ci;editor,  unless  the  omission  was 
wilful  or  fraudulent :  Payne  v.  Able,  4  B. 
R.  67.  A  discharge  cannot  be  granted 
after  death  of  the  debtor,  unless  there 
shall  have  been  a  compliance  with  the 
requirements  of  section  29  of  the  Bank- 
rupt Act,  as  to  the  application  for  a  dis- 
charge:  O'Farrell,  2  B.  R.  154;  see  also 
Gunike,  4  Id.  23. 


OF  BANKRUPTCY  OF  TRADERS.  157 

An  order  of  discharge  shall  not  release  the  bankrupt  from  any  debt 
or  liability  incurred  by  means  of  any  fraud  or  breach  of  trust,  nor  from 
any  debt  or  liability  Avhereof  he  has  obtained  forbearance  by  any  fraud, 
but  it  shall  release  the  bankrupt  from  all  other  debts  provable  under  the 
bankruptcy,  with  the  exception  of — 
(1.)  Debts  due  to  the  crown  : 

(2.)  Debts  with  which  the  bankrupt  stands  charged  at  the  suit  of  the 
crown  or  of  any  person  for  *any  offence  against   a    p^^  rr,-, 
statute  relating  to  any  branch  of  the  public  revenue, 
or  at  the  suit  of  the  sheriff  or  other  public  officer  on  a  bail  bond 
entered  into  for  the  appearance  of  any  person  prosecuted  for 
any  such  offence : 
and  he  shall  not  be  discharged   from  such  excepted  debts  unless  the 
Commissioners  of  the  Treasury  certify  in  writing  their  consent  to  his 
being  discharged  therefrom.     An  order  of  discharge  shall  be  sufficient 
evidence  of  the  bankruptcy,   and  of  the  validity  of  the  proceedings 
thereon  ;  and  in  any  proceedings  that  may  be  instituted  against  a  bank- 
rupt who  has  obtained  an  order  of  discharge  in  respect  of  any  debt  from 
which  he  is  released  by  such  order,  the  bankrupt  may  plead  that  the 
cause  of  action  occurred  before  his  discharge,  and  may  give  the  act  and 
the  special  matter  in  evidence.(r)  ^ 

The  order  of  discharge  shall  not  release  any  person  who,  at  the  date 
of  the  order  of  adjudication,  was  a  partner  with  the  bankrupt,  or  was 
jointly  bound  or  had  made  any  joint  contract  with  him.(s)^ 

Until  the  bankrupt  obtained  his  discharge  all  the  real  and  personal 
property  which  might  descend,  revert,  or  be  devised  or  bequeathed  or 
come  to  him,  became  vested  in  his  assignees. (^)^  But  an  uncertificated 
bankrupt  might  maintain  an  action  for  his  personal  labor  performed  after 
the  bankruptcy, (?*)  and  he  might  also  sue  in  respect  of  contracts  made 
with  himself,  and  also  in  respect  of  any  after-acquired  property,  if  the 
assignees  or  creditors  did  not  interfere.(v)  The  court,  however,  r*i  cq-i 
*was  empowered  by  the  Act  of  1861  in  certain  cases  of  miscon- 

(r)  Stat.  32  &  33  Vict.  c.  71,  s.  49.  (s)  Sect.  50. 

(t)  Stat.  12  &  13  Vict.  c.  106,  ss.  141,  142. 
(u)  Silk  V.  Osborne,  1  Esp.  R.  140. 

{v.)  Webb  V.  Fox,  7  Term  Rep.  391  ;  Drayton  v.  Dale,  2  B.  &  C.  293  (E.  C.  L.  R.  vol. 
9)  ;  Crofton  v.  Poole,  1  B.  &  Ad.  568  (E.  C.  L.  R.  vol.  20). 

1  See  ante,  p.  132,  note  2  ff.  ^  See  ante,  p.  132,  note  2  i. 

3  See  ante,  p.  151,  note  1. 


159  OF   CIIOSES   IN   ACTION. 

duct,  either  to  refuse  or  suspend  the  order  of  discharge,  or  to  grant  the 
same  subject  to  any  conditions  touching  any  salary,  pay,  emoluments, 
profits,  wages,  earnings  or  income,  which  might  afterwards  become  due 
to  the  bankrupt,  and  touching  his  after-acquired  property.(w)  The  Act 
of  18G9  has,  as  we  have  seen,(.r)  substituted  the  trustee  for  tlie  assignees  ; 
and  it  vests  in  him  all  the  property  of  the  bankrupt  at  the  commence- 
ment of  the  bankruptcy,  or  which  may  be  acquired  by  or  devolve  on  him 
during  its  continuance.(?/)  The  act  also  contains  the  following  provi- 
sions with  regard  to  the  status  of  an  undischarged  bankrupt.  Wliere  a 
person  who  has  been  made  bankrupt  has  not  obtained  his  discharge, 
then,  from  and  after  the  close  of  his  bankruptcy,  the  following  conse- 
quences shall  ensue : 

(1.)  No  portion  of  a  debt  provable  under  the  bankruptcy  shall  be  en- 
forced against  the  property  of  the  person  so  made  bankrupt 
until  the  expiration  of  three  years  from  the  close  of  the  bank- 
ruptcy ;  and  during  that  time,  if  he  pay  to  his  creditors  such 
additional  sum  as  will,  with  the  dividend  paid  out  of  his  pro- 
perty during  the  bankruptcy,  make  up  ten  shillings  in  the 
pound,  he  shall  be  entitled  to  an  order  of  discharge  in  the  same 
manner  as  if  a  dividend  of  ten  shillings  in  the  pound  had  ori- 
ginally been  paid  out  of  his  property  : 

(2.)  At  the  expiration  of  a  period  of  three  years  from  the  close  of 
the  bankruptcy,  if  the  debtor  made  bankrupt  has  not  obtained 
an  order  of  discharge,  any  balance  remaining  unpaid  in 
respect  of  any  debt  proved  in  such  bankruptcy  (but  without 
interest  in  the  meantime)  shall  be  deemed  to  be  a  subsist- 
r*1601  ^^»  ^^^^  ^^  ^^®  nature  of  *a  judgment  debt,  and,  subject  to 
the  rights  of  any  persons  who  have  become  creditors  of  the 
debtor  since  the  close  of  his  bankruptcy,  may  be  enforced 
against  any  property  of  the  debtor  with  the  sanction  of  the 
court  which  adjudicated  such  debtor  a  bankrupt,  or  of  the 
court  having  jurisdiction  in  bankruptcy  in  the  place  where  the 
property  is  situated,  but  to  the  extent  only,  and  at  the  time 
and  in  manner  directed  by  such  court,  and  after  giving  such 
notice  and  doing  such  acts  as  may  be  prescribed  in  that  be- 
half.(z) 

Any  petition  or  copy  of  a  petition  in  bankruptcy,  any  order  or  copy 

(«-•)  Stat.  24  &  25  Vict.  c.  134,  s.  1.^)9.  (z)  Ante,  p.  141. 

(y)  Stat.  32  &  33  Vict.  c.  71,  s.  15.  (z)  Sect.  54. 


OP   BANKRUPTCY   OF   TRADERS.  160 

of  an  order  made  by  any  court  having  jurisdiction  in  bankruptcy,  any 
certificate  or  copy  of  a  certificate  made  by  any  court  having  jurisdiction 
in  bankruptcy,  any  deed  or  copy  of  a  deed  of  arrangement  in  bank- 
ruptcy, and  any  other  instrument  or  copy  of  an  instrument,  afiidavit  or 
document  made  or  used  in  the  course  of  any  bankruptcy  proceedings,  or 
other  proceedings  had  under  the  Bankruptcy  Act,  1869,  may,  if  any  such 
instrument  as  aforesaid  or  copy  of  an  instrument  appears  to  be  sealed 
■with  the  seal  of  any  court  having  jurisdiction,  or  purports  to  be  signed 
by  any  judge  having  jurisdiction  in  bankruptcy  under  this  act,  be  re- 
ceivable in  evidence  in  all  legal  proceedings  whatever.(a) 

If  a  person  having  privilege  of  parliament  commits  an  act  of  bank- 
ruptcy he  may  be  dealt  with  under  the  Act  of  1869  in  like  manner  as  if 
he  had  not  such  privilege. (5) 

If  a  person,  being  a  member  of  the  Commons  House  of  Parliament,  is 
adjudged  bankrupt,  he  shall  be  and  *remain  during  one  year  r*]^g;[-i 
from  the  date  of  the  order  of  adjudication  incapable  of  sitting 
and  voting  in  that  House,  unless  Avithin  that  time  either  the  order  is  an- 
nulled or  the  creditors  who  prove  debts  under  the  bankruptcy  are  fully 
paid  or  satisfied.  Provided  that  such  debts  (if  any)  as  are  disputed  by 
the  bankrupt  shall  be  considered,  for  the  purpose  of  this  section,  as  paid 
or  satisfied,  if  within  the  time  aforesaid  he  enters  into  a  bond,  in  such 
sum  and  with  such  sureties  as  the  court  approves,  to  pay  the  amount  to 
be  recovered  in  any  proceeding  for  the  recovery  of  or  concerning  such 
debts,  together  with  any  costs  to  be  given  in  such  proceedings.(c) 

The  following  regulations  are  made  by  the  Bankruptcy  Act,  1869,  with 
respect  to  the  liquidation  by  arrangement  of  the  affairs  of  the  debtor  :^ 

(a)  Stat.  32  &  33  Vict.  c.  71,  s.  107.  (b)  Sect.  120. 

(c)  Sect.  121. 

1  See  ante,  p.  132,  note  2  I.  stantial  objection  to  the  approval  of  the  reso- 

The    Court   has    power  to   supersede   a  lution  for  a  trustee  arrangement,  that  the 

bankruptcy  with  consent  of  the  creditors :  committee  was  composed  of  two  only,  one 

Miller,  1  B.  R.  105;  But  see  Sherburne,  Id.  of  whom  is  the  trustee:  Sillwell,  2  B.  R. 

155 ;  see  also  Morris's  Estate,  Crabbe  70  ;  164.     The  trustees  under  direction  of  the 

Lathrop,  5  B.  R.  43.     After    an    assignee  committee    may,    if    so    ordered    by   the 

has  been  appointed,  at  a  subsequent  meet-  Court,  proceed  to  settle  the  estate  just  as 

ing  of  creditors,  they  may  make  an  arrange-  if  there  had  been  no  adjudication  of  bank- 

ment  by  trust  deed  to  have  the  assignee  ruptcy,  and  the  bankrupt  was  managing 

removed,  and  a  trustee  appointed   in   his  his    own    affairs,    taking   care   always   to 

stead :  Jones,   2  B.  R.  20.     It   is   a   sub-  secure   legal    protection   to    each    of  the 


161  OF   CnOSES   IN   ACTION. 

(1.)  A  debtor  unable  to  pay  his  debts  may  summon  a  general  meeting 
of  his  creditors,  and  such  meeting  may,  by  a  special  resolution 
as  defined  by  the  act,  declare  that  the  afi^airs  of  the  debtor  are 
to  be  liquidated  by  arrangement  and  not  in  bankruptcy,  and 
may  at  that  or  some  subsequent  meeting,  held  at  an  interval 
of  not  more  than  a  week,  appoint  a  trustee,  with  or  without  a 
committee  of  inspection. 
(2.)  All  the  provisions  of  the  act  relating  to  a  first  meeting  of  cred- 
itors, and  to  subsequent  meetings  of  creditors  in  the  case  of  a 
bankruptcy,  including  the  description  of  creditors  entitled  to 
vote  at  such  meetings,  and  the  debts  in  respect  of  which  they 
are  entitled  to  vote,  shall  apply  respectively  to  the  first  meet- 
ing  of  creditors,  and   to    subsequent  meetings   of  creditors, 

r*iroi      *^'^^   ^^^  purposes  of   this  section,  subject  to  the    following 

'-       "-^      modifications : 

{a.)  That  every  such  meeting  shall  be  presided  over  by  such 

chairman  as  the  meeting  may  elect ;  and 
(b.)  That  no  creditor  shall  be  entitled  to  vote  until  he  has  proved 
by  a  statutory  declaration  a  debt  provable  in  bankruptcy  to  be 
due  to  him,  and  the  amount  of  such  debt,  with  any  prescribed 
particulars  ;  and  any  person  wilfully  making  a  false  declaration 
in  relation  to  such  debt  shall  be  guilty  of  a  misdemeanor. 
(3.)  The  debtor,  unless  prevented  by  sickness  or  other  cause  satis- 
factory to  such  meeting,  shall  be  present  at  the  meeting  at 
which  the  special  resolution  is  passed,  and  shall  answer  any 
inquiries  made  of  him,  and  he,  or  if  he  is  so  prevented  from 
being  at  such  meeting  some  one  on  his  behalf,  shall  produce  to 
the  meeting  a  statement  showing  the  whole  of  his  assets  and 
debts,  and  the  names  and  addresses  of  the  creditors  to  whom 
his  debts  are  due. 
(4.)  The  special  resolution,  together  with  the  statement  of  the  assets 
and  debts  of  the  debtor,  and  the  name  of  the  trustee  appointed, 
and  of  the  members,  if  any,  of  the  committee  of  inspection,' 
shall  be  presented  to  the  registrar,  and  it  shall  be  his  duty  to 
inquire  whether  such  resolution  has  been  passed  in  manner 
directed  by  this  section,  but  if  satisfied  that  it  was  so  passed, 

creditors.  Wherever  the  trustees  and  com-  it  was  held  that  proofs  of  debts  against  the 

mittee  are  satisfied  that  demands  are  cor-  estate  of  a  bankrupt  must  be  made  before 

rect,  and  require  no  testimony  to  be  taken,  the  register,  even  though  proceedings  in 

they  can  allow  the  same :  Darby,  4  B.  R.  bankruptcy  have  been  superseded  by  trus- 

98 ;   but   see   Bakewell,  4  Id.  199,  where  tee  arrangement. 


OF   BANKRUPTCY   OF   TRADERS.  162 

and  that  a  trustee  has  been  appointed  with  or  without  a  com- 
mittee of  inspection,  he  shall  forthwith  register  the  resolution 
and  the  statement  of  the  assets  and  debts  of  the  debtor,  and 
such  resolution  and  statement  shall  be  open  for  inspection  on 
the   prescribed   conditions,  *and   the   liquidation  by    r*-|pq-i 
arrangement  shall  be  deemed  to  have  commenced  as 
from  the  date  of  the  appointment  of  the  trustee. 
(5.)  All  such  property  of  the  debtor  as  would,  if  he  were  made  bank- 
rupt, be  divisible  amongst  his  creditors  shall,  from  and  after 
the  date  of  the  appointment  of  a  trustee,  vest  in  such  trustee 
under  a  liquidation  by  arrangement,  and  be  divisible  amongst 
the  creditors,  and  all  such  settlements,  conveyances,  transfers, 
charges,  payments,  obligations  and  proceedings  as  would  be 
void  against  the  trustee  in  the  case  of  a  bankruptcy  shall  be 
void  against  the  trustee  in  the  case  of  liquidation  by  arrange- 
ment. 
(6.)  The  certificate  of  the  registrar  in  respect  of  the  appointment  of 
any  trustee  in  the  case  of  a  liquidation  by  arrangement  shall 
be  of  the  same  effect  as  a  certificate  of  the  court  to  the  like 
eflFect  in  the  case  of  a  bankruptcy. 
(7.)  The  trustee  under  a  liquidation  shall  have  the  same  powers  and 
perform  the  same  duties,  as  a  trustee  under  a  bankruptcy,  and 
the  property  of  the  debtor  shall  be  distributed  in  the  same 
manner  as  in  a  bankruptcy ;  and  with  the  modification  herein- 
after mentioned  all  the  provisions  of  the  act  shall,  so  far  as  the 
same  are  applicable,  apply  to  the  case  of  a  liquidation  by  ar- 
rangement in  the  same  manner  as  if  the  word  "bankrupt" 
included  a  debtor  whose  affairs  are  under  liquidation,  and  the 
word   "bankruptcy"   included   liquidation   by  arrangement; 
and  in  construing  such  provisions  the  appointment  of  a  trustee 
under    a    liquidation    shall,   according    to    circumstances,  be 
deemed  to  be  equivalent  to  and  a  substitute  for  the  presenta- 
tion of  a  petition  in  bankruptcy,  or  the  *service  of  pi04-| 
such  petition  or  an  order  of  adjudication  in  bankruptcy. 
(8.)  The  creditors  at  their  first  or  any  general  meeting  may  prescribe 
the  bank  into  which  the  trustee  is  to  pay  any  moneys  received 
by  him,  and  the  sum  which  he  may  retain  in  his  hands. 
(9.)  The  provisions  of  the  act  with  respect  to  the  close  of  the  bank- 
ruptcy, discharge  of  a  bankrupt,  to  the  release  of  the  trustee, 
and  to  the  audit  of  accounts  by  the  comptroller,  shall  not  ap- 
ply in  the  case  of  a  debtor  whose  affairs  are  under  liquidation 


164  OF   CIIOSES    IN   ACTION. 

by  arrangement ;  but  the  close  of  tlic  liquidation  may  be  fixed, 
and  the  discharge  of  the  debtor  and  the  release  of  the  trustee 
may  be  granted  by  a  special  resolution  of  the  creditors  in 
general  meeting,  and  the  accounts  may  be  audited  in  pursu- 
ance of  such  resolution,  at  such  time  and  in  such  manner  and 
upon  such  terms  and  conditions  as  the  creditors  think  fit. 

(10.)  The  trustee  shall  report  to  the  registrar  the  discharge  of  the 
debtor,  and  a  certificate  of  such  discharge  given  by  the  regis- 
trar shall  have  the  same  effect  as  an  order  of  discharge  given 
to  a  bankrupt  under  the  act. 

(11.)  Rules  of  court  may  be  made  in  relation  to  proceedings  on  the 
occasion  of  liquidation  by  arrangement  in  the  same  manner 
and  to  the  same  extent  and  of  the  same  authority  as  in  respect 
of  proceedings  in  bankruptcy. 

(12.)  If  it  appear  to  the  court  on  satisfactory  evidence  that  the  liqui- 
dation by  arrangement  cannot,  in  consequence  of  legal  diffi- 
culties, or  of  there  being  no  trustee  for  the  time  being,  or  for 
any  sufficient  cause,  proceed  without  injustice  or  undue  delay 
to  the  creditors  or  to  the  debtor,  *the  court  may  adjudge  the 
[*165]      ^oi^QY  a  bankrupt,  and  proceedings  may  be  had  accordingly. 

(13.)  Where  no  committee  of  inspection  is  appointed  the  trustee  may 
act  on  his  own  discretion  in  cases  where  he  Avould  otherwise 
have  been  bound  to  refer  to  such  committee. 

(14.)  In  calculating  a  majority  on  a  special  resolution  for  the  purposes 
of  this  section,  creditors  whose  debts  amount  to  sums  not  ex- 
ceeding ten  pounds  shall  be  reckoned  in  the  majority  in  value, 
but  not  in  the  majority  in  number.((:?) 

(d)  Stat.  32  &  33  Vict.  c.  VI,  s.  125. 


*  CHAPTER   V. 


[*166] 


OF    BANKRUPTeY    OF   NON-TRADERS. 

Before  the  Bankruptcy  Act,  1861,  a  person  not  in  trade  could  not 
be  made  a  bankrupt.  He  might,  however,  have  become  insolvent.  In- 
solvency, strictly  speaking,  means  a  general  inability  to  meet  pecuniary 
engagements. (a)^  But  the  term  was  very  commonly  and  conveniently 
applied  to  the  means  of  getting  rid  of  such  engagements  afforded  by 
certain  acts  of  parliament  passed  for  the  relief  of  insolvent  debtors.^ 

(a)  Biddlecombe  v.  Bond,  4  Ad.  &  E.  332  (E.  C.  L.  R.  vol.  31). 


1  If  a  man's  debts  cannot  be  made  in 
full  out  of  his  property  by  levy  and  sale 
on  execution,  he  is  insolvent  within  the 
meaning  of  the  United  States  bankrupt 
law :  Randall,  3  B.  R.  4.  Merchants  unable 
to  pay  all  their  debts,  in  the  usual  and  or- 
dinary course  of  business,  as  persons  car- 
rjang  on  trade  usually  do,  are  insolvent 
within  the  meaning  of  the  said  act :  Lewis 
V.  Rosenham,  2  B.  R.  145 ;  Wilson  v. 
Brinkman,  Id.  149  ;  "Wright,  Id.  155  ;  Mor- 
gan V.  Mastick,  Id.  163 ;  Rison  v.  Knapp, 

4  Id.  114  ;  Stranahan  v.  Gregory,  Id.  142  ; 
Martin  v.  Toof,  Id.  158  ;  Sawyer  v.  Turpin, 

5  Id.  339. 

Aliter  as  to  a  farmer  :  Keys,  3  B.  R.  54. 
The  strict  definition  of  insolvency,  usually 
given  in  commercial  centres,  should  not 
be  applied  iu  country  places.  A  party 
should  be  held  insolvent  only  when  he 
fails  to  meet  his  debts  according  to  the 
usages  and  customs  of  the  place  of  his 
business  ;  the  rule  should  be  in  harmony 
with  the  general  custom  of  the  place  :  Hall 
V.  Wager,  5  B.  R.  181. 

2  The  lav,'s  and  regulations  on  the  sub- 
ject of  insolvency,  are  almost  as  diverse 
as  there  are  states  in  the  Union.  To  give 
a  sketch  of  all  these  laws,  and  the  judicial 
constructions  of  them,  would  far  exceed 
the  limits  of  a  note.  The  decisions  as  to 
what  is   a   valid   preference   made   by   a 


debtor  in  favor  of  a  creditor,  and  what  an 
invalid  one, — as  to  what  is  a  good  assign- 
ment for  the  benefit  of  creditors,  and  what 
bad, — preferences  having  been  declared 
void  under  the  bankrupt  law,  and  general 
assignments  for  the  benefit  of  creditors, 
only  operating,  if  at  all,  in  the  discretion 
of  the  assignee  in  bankruptcy — together 
with  the  many  other  questions  of  a  like 
nature,  relating  to  the  peculiar  system 
and  practice  of  each  state,  may  be  of  in- 
terest to  the  citizens  of  the  respective 
states ;  but  it  can  scarcely  bd  expected, 
and  it  certainly  would  not  be  advantageous, 
to  collect  together  these  diversities,  nu- 
merous as  they  are,  and  depending  as  they 
do  almost  entirely  upon  an  interpretation 
of  the  statutes  of  the  several  states,  for 
such  a  collection  could  result  in  nothing 
but  confusion.  The  insolvent  law  of  each 
state,  is  regulated  by  the  acts  of  the  legis- 
lature and  judicial  opinions  of  that  state, 
and  will  be  conclusive  upon  all  its  citi- 
zens, unless  there  be  a  conflict  between 
the  laws  of  a  state  and  those  of  the  Gen- 
eral Government:  Griswold  v.  Piatt,  9 
Mete.  16;  Betts  v.  Bagley,  12  Pick.  580; 
Alexander  v.  Gibson,  1  N.  &  McC.  483; 
Clark,  Assignee,  &c.,  v.  Rosenda  et  al.,  5 
Robins.  27.  It  is  only,  therefore,  those 
questions  which  are  of  general  interest, 
that  will  be  here  considered. 


166 


OF   CIIOSES    IN   ACTION. 


The  principal  act  for  the  relief  of  insolvent  debtors  in   England  vras 
the  statute  1  .S:  2  Vict.  c.  110,  the  former  sections  of  which  were,  how- 


By  the  terra  "insolvent  law,"  as  gcner- 
erally  received,  is  understood  a  law  ope- 
rating upon  the  remedy  of  a  contract,  and 
not  upon  the  contract  itself;  discharging, 
indeed,  the  debtor  from  imprisonment,  but 
not    releasing  his    future    acquisitions   of 
property  from    the    payment  of  his  debt; 
while  under  the  words  "bankrupt  law,"  is 
comprehended  all  those  enactments,  which 
discharge  the  debtor  from  liability  upon 
his    contract.     That   this    distinction    be- 
tween bankrupt  and  insolvent  laws,  though 
ordinarily   received    as    true,    cannot   be 
entirely  relied  on,  may  be  seen  from  the 
opinion  of  Chief  Justice  Marshall,  in  the 
case  of  Sturges  v.  Crowninshield,  4  Wheat. 
194:    "It  is   said  ....  that  laws  which 
merely  liberate  the  person   are  insolvent 
laws,  and  those  which  discharge  the  con- 
tract, are  bankrupt  laws.     But  if  an  act 
of  Congress  should  discharge  the  person 
of  a  bankrupt,  and  leave  his  future  acqui- 
sitions liable  to  his  creditors,  we  should 
feel  much    hesitation  in  saying  that  this 
was  an    insolvent,    not   a    bankrupt   act; 
and,  therefore,  unconstitutional.     Another 
distinction  has  been  stated,  and  has  been 
uniformly  observed.     Insolvent  laws  ope- 
rate  at    the    instance    of    an    imprisoned 
debtor;  bankrupt  laws  at  the  instance  of 
a  creditor.     But  should  an  act  of  Congress 
authorize  a  commission  of  bankruptcy  to 
issue   on  the   application   of  a  debtor,  a 
court    would    scarcely  be    warranted   in 
saying  that  the  law  was  unconstitutional, 
and  the  commission  a  nullity."     Notwith- 
standing this  decision,  the  district  judge 
of  Missouri,  in   Nelson  v.   Carland,   pro- 
nounced the  Act  of  Congress  of  1841,  au- 
thorizing a  debtor  to  be  declared  a  bank- 
rupt upon  his  own  petition,  a  mere  insol- 
vent law  ;  but,  upon  a  certificate  of  differ- 
ence of  opinion  between  the  judges  of  the 
Circuit  and  District  Courts,  the  Supreme 
Court   declared,  that,  under  the  circum- 
stances of  that  case,  the  act  did  not  give 
a  power  of  review,  and  that  the  decision 
of  the  district  judge  must  be  regarded  as 


final :   1  How.  269.     This  difficulty  of  dis- 
tinguishing between  bankrupt  and  insol- 
vent laws,  has,  perhaps,  in   part,  caused 
that  diversity  of  opinion  which  has  led  to 
the  holding,  in  some  cases,  that  the  states 
not   only  have   power   to   pass   insolvent 
laws,  but  also  bankrupt  laws  :   Ogden  v. 
Saunders,  12  Wheat.  213  ;  Woodhull  et  al. 
V.  Wagner,  1  Baldw.  296  ;  Shaw  j;.  Robins, 
12  Wheat.  369;  Mason   v.  Haile,  Id.  370; 
Beers  et  al.  v.   Haughton,  9  Peters  330  ; 
Hempstead  v.  Reed,  6  Conn.  480;  Norton 
V.  Cook,  9  Id.  314 ;  Blair,  &c.,  v.  Williams, 
4  Litt.  35  ;  Bronson  v.  Newberry,  2  Doug. 
38  ;  Brown  v.  Dillahunty  et  al.  4  Sme.  & 
Mar.  725;  Gray  et  al.  v.  Monroe  et  al.,    I 
McLean  528  ;  Roosevelt  v.  Cebra,  17  Johns. 
108;  Post  V.  Riley,  18  Id.  54;  Penniman 
V.  Meigs,  9  Id.  325 ;  Ex  parte  Ziegenfuss,     , 
2    Ired.   467 ;  Smith   v.  Parsons,    1    Ohio 
236;  Alexander  v.  Gibson,  1  Nott  &  McC. 
483 ;   while,  on   the   contrary,   other   au- 
thorities maintain  that  the  state  legisla- 
ture  have   no   power    to   pass    bankrupt 
laws:  McMillan  v.  McNeill,  4  Wheat.  209; 
Golden  v.  Price,  3  Wash.  C.  C.  313  ;  Farm- 
ers' and  Mechanics'  Bank  of  Pennsylvania 
V.   Smith,  6  Wheat.  131 ;  Glenn  v.  Hum- 
phreys, 4  Wash.   C.  C.   424;   Medbury  v. 
Hopkins,  3  Conn.  472  ;  Ballentine  et  al.  v. 
Haight,    1    Harring,    197 ;    Olden    et    al., 
Exrs.,  V.   Hallet,    2    South.  466.     All  the 
cases,  however,  agree,  that  the  state  gov- 
ernments have  no  power  to  make  a   law 
impairing  the  obligation  of  a  contract,  and 
the  only  question  of  dispute  between  them 
has  been,  whether  a  state  bankrupt  law 
impairs  the  obligation  of  a  contract;  some 
holding  that  it  does,  because  we  under- 
stand by  a  bankrupt  law  one  which  abso- 
lutely discharges  the   debt;    and   others, 
admitting  the  definition  of  a  bankrupt  law, 
deny  that  it  impairs  the  contract,  if  the 
bankrupt  law  was  in  existence  at  the  time 
when  the  contract  was  made,  because  the 
contract  was    then  made  in  subserviency 
to  existing  laws.     As  to  insolvent  laws,  it 
has   been   determined    that  inasmuch  as 


OF    BANKRUPTOY   OF    NON-TRADERS. 


166 


ever,  occupied  in  abolishing  arrest  on  mesne  process  in  civil  actions,  and 
in  extending  the  remedies  of  judgment  creditors  against  the  property  of 


they,  according  to  the  ordinary  accep- 
tation of  the  term,  operate  merely  upon  the 
remedy,  and  not  upon  the  contract  itself, 
they  cannot  be  said  to  impair  the  obliga- 
tion of  contracts,  and  are  consequently 
valid.  The  effect  of  a  discharge  under 
the  insolvent  law  of  a  state,  may  be  re- 
garded as  at  rest,  so  far  as  regards  the 
decisions  of  the  Courts  of  the  United  States: 
Boyle  V.  Zacharie  et  al.,  6  Peters  635. 
That  other  question,  also,  in  respect  to  the 
clashing  of  the  authority  of  the  State  and 
General  Government,  may  be  considered 
determined,  for  in  the  words  of  Chief 
Justice  Marshall,  in  the  case  of  Sturges  v. 
Crowninshield,  above  referred  to:  "This 
difficulty  of  discriminating  with  any  ac- 
curacy between  insolvent  and  bankrupt 
laM"s,  would  lead  to  the  opinion  that  a 
bankrupt  law  may  contain  those  regula- 
tions which  are  generally  found  in  insol- 
vent laws,  and  that  an  insolvent  law  may 
contain  those  which  are  common  to  a 
bankrupt  law.  If  this  be  correct,  it  is  ob- 
vious that  much  inconvenience  would  re- 
sult from  that  construction  of  the  Consti- 
tution, which  would  deny  to  the  State 
Legislature  the  power  of  acting  on  this 
subject,  in  consequence  of  the  grant  to 
Congress.  It  may  be  thought  more  conve- 
nient that  much  of  it  should  be  regulated 
by  state  legislation,  and  Congress  may 
purposely  omit  to  provide  formany  cases 
to  which  their  power  extends.  It  does  not 
appear  to  be  a  violent  construction  of  the 
Constitution,  and  is  certainly  a  convenient 
one,  to  consider  the  power  of  the  states  as 
existing  over  such  cases  as  the  law  of  the 
Union  may  not  reach.  •  But  be  this  as  it 
may,  the  power  granted  to  Congress  may 
be  exercised  or  declined,  as  the  wisdom 
of  that  body  shall  decide.  If,  in  the  opin- 
ion of  Congress,  uniform  laws  concerning 
bankruptcies  ought  not  to  be  established, 
it  does  not  follow  that  partial  laws  may 
not  exist,  or  that  state  legislation  on  the 
subject  may  cease.  It  is  not  the  mere  ex- 
istence of  the  power,  but  its  exercise, 
15 


which  is  incompatible  with  the  exercise  of 
the  same  power  by  the  states.  It  is  not 
the  right  to  establish  these  uniform  laws, 
but  their  actual  establishment,  which  is 
inconsistent  with  the  partial  acts  of  the 
states."  See  also,  Baldwin  v.  Hale,  1 
Wall.  U.  S.  228. 

Although,  since  the  passage  of  the 
Bankrupt  Law,  the  consideration  of  the 
extent  of  the  jurisdiction  of  the  Insolvent 
Laws  of  the  states  may  not  be  of  as  much 
practical  importance  as  formerly,  it  is 
nevertheless  of  interest  to  notice  the  di- 
versity of  sentiment  on  the  subject. 

For  general  purposes,  the  people  of  this 
country  are  one.  yet,  in  other  respects, 
the  states  are  necessarily  foreign  and  in- 
dependent of  each  other:  Buckner  v.  Fin- 
ley  et  al.,  2  Peters  586 ;  Emory  v.  Green- 
ough,  3  Dall.  369  ;  and  consequently  it  is 
to  be  expected  that,  as  in  the  interpreta- 
tion of  foreign  contracts,  the  lex  loci  con- 
tractus will  be  regarded  :  Smith  v.  Mead,  3 
Conn.  253;  Hammett  v.  Anderson,  Id. 
304 ;  so  in  the  execution  of  the  contract, 
the  lex  fori  will  prevail :  White  v.  Can- 
field,  7  Johns.  117;  Whittemore  i-.  Adams, 
2  Cowen  626;  Lowdeu  et  al.  v.  Moses,  3 
McC.  93  ;  Ayres  et  al.  t'.  Audibon,  2  Hill 
(S.  C.)  601.  In  accordance  with  this  we 
find,  that  a  contract  made  in  one  state,  is 
not  affected  by  the  discharge  of  the  debtor 
under  the  insolvent  law  of  another  state: 
Cook  V.  Moffat  et  al.,  5  How.  295  ;  Smith 
V.  Mead,  3  Conn.  253  ;  Hammett  z'.  Ander- 
son, Id.  304 ;  Fisher  et  al.  v.  Wheeler  et 
al.,  5  La.  Ann.  271  ;  Judd  v.  Porter,  7 
Maine  337;  Palmer  v.  Goodwin,  32  Id. 
535  ;  Larrabee  v.  Talbott,  <fec.,  5  Gill  426  ; 
Glenn  v.  Gill,  2  Md.  18  ;  Owens  et  al.  v. 
Bowie  et  al.,  &c..  Id.  457  ;  Van  Raugh  v. 
Van  Arsdale,  3  N.  Y.  154;  Van  Hooky. 
Whittock,  26  Wend.  53;  Hicks  v.  Hotch- 
kiss  et  al.,  7  Johns.  Ch.  297 ;  Wyman  v. 
Mitchell,  1  Cowen  316;  Bizziel  n.  Bedient, 
2  Car.  L.  Repos.  254 ;  McKim  v.  Willis,  1 
Allen  512  ;  Kendall  v.  Badger,  1  McCal.  C. 
C.    263  ;  Beer   v.   Hooper,   32    Miss.    246  ; 


lec. 


OF    CHOSES    IN    ACTION. 


tlu'ir  debtors.     So  far  as  the  act  related  to  insolvent  debtors,  it  was  for 
the  nu)>t  part   a  reprint,  with   some  important  additions,  of  a  previous 


Dinsmore  v.  Bradley,  5  Gray  487  ;  Ander- 
son V.  Wheeler,  25  Conn.  603  ;  and  that  a 
disclmr^'c  from  imprisonment  in  one  state, 
cannot     l.e    of    any    avail    in    an    action 
brou-tht  in  the  courts  of  the  United  States, 
or  the  courts  of  any  other  state  than  that 
wlu-re  the  discharge  was  obtained  :  Ogden 
V.  Saunders,  12  Wheat.  213  ;  Clay  v.  Smith, 
3  I'cters  411;  United  States  v.  Wilson,  8 
Wheat.  2:)3;  WoodhuU  et  al.  i'.  Wagner, 
1     Haldw.    296 ;     Shaw    v.    Robbins,     12 
Wheat.    369 ;     Glenn     v.    Humphreys,    4 
Wn.-ih.  C.  C.  424  ;   Babcock  v.   Weston,  1 
Gallis.   168;  Hinkley  i'.  Mareau,  3  Mason 
88 ;     Beers    i-.    Haughton,   9    Peters    330 ; 
Suydam  et  al.  v.  Broadnax  et  al.,  Adnirs., 
14   Id.  67;   King  v.  Riddle,  7   Crunch   168; 
Woodbridge  i'.  Wright  et  al.,  3  Conn.  523  ; 
Norton    v.    Cook,    9    Id    314;    Watson    v. 
Browne,    10   Mass.   337  ;    Frey   v.   Kirk,  4 
Gill  &  Johns.   509;  Friske    v.  Foster,   10 
Mete.  5117;  Ilsley  v.  Merriam,  7  Id.  242; 
Clark   V.   Hatch,   Id.   455;  Wool   et  al.  v. 
Malin,   5   Halst.   208;   Vanuxem  et  al.   v. 
Hazlehursts,  1  South.  202  ;  Smith,  Admr., 
V.   Smith,   2    Johns.    235 ;  White   v.   Can- 
field,  7  Id.   117;  Sicard  v.  Whale,  11   Id. 
104  ;  Mather  et  al.  v.  Bush,    16  Id.  233 ; 
Whittemore    «'.    Adams,    2    Cowen    626; 
Peck    t'.    Hozier  et    al.,    11    Johns.    346; 
James  et  al.  i'.  Allen,  1  Dall.  206  ;  Ayres 
et   al.    I'.    Audibon,    2    Hill    (S.  C.)   601; 
Baldwin   v.  Hale,    1   Wall.   U.  S.   223  ;  in 
which  last  case  it  was  decided  that  a  dis- 
charge obtained  under  the  insolvent  laws 
of  one  state,  is  not  a  bar  to  an  action  on  a 
note  given   in  and  payable    in  the  same 
state,  the   party   to   whom   the  note   was 
given  having  been  and  being  of  a  differ- 
ent state,  and  not  having  proved  his  debt 
against  the   defendant's    estate   in    insol- 
■vency,  nor  in  any  manner  been  a  party  to 
those  proceedings.     And  see  Poe  v.  Duck, 
5  Md.    1  ;    Fessenden   i-.   Willey,    2    Allen 
(Mass.)  67  ;  Bank  v.  Butler,  45  N.  H.  336  ; 
Felch   V.  Bugbee,  48   Maine   9  ;  Oilman  v. 
Lockwood,  4  Wall.  U.  S.  409.    Some  cases, 
however,  have  held  that  if  the  discharge 


has  been  granted  by  the  state  in  which 
the  contract  was  made,  it  will  remain 
good  even  against  a  resident  of  another 
state  :  Blanchard  v.  Russell,  13  Mass.  1  ; 
Proctor  V.  Moore,  1  Id.  198;  Braynard  r. 
Marshall,  8  Pick.  194;  Savoye  et  al.  v. 
Marsh  et  al.,  10  Id.  594 ;  Pugh  v.  Bussel,  2 
Blackf.  394  ;  Scribner  v.  Fisher,  2  Gray 
43;  Houghton  v  Maynard,  5  Id.  552.  As 
a  general  rule,  the  state  laws  prohibiting 
assignments  of  property  by  a  failing 
debtor,  in  anticipation  of  insolvency,  to 
preferred  creditors,  will  not  be  regarded 
in  another  or  sister  state,  where  a  creditor 
of  the  insolvent  resides,  and  to  whom 
such  assignment  has  been  made  :  Upton  v. 
Hubbard,  28  Conn.  274;  Mead  v.  Dayton, 
Id.  33  ;  Hoyt  v.  Shelden,  3  Bosw.  267. 

But    there    is    a   class    of   cases    which 
would  at  first  sight  seem  to  be  inconsis- 
tent  with    the    decisions    above    quoted ; 
thus,  a  dischar^re  obtained  in  Maryland,  or 
Pennsylvania,  or  NewTork,  has  been  held 
good   in  Delaware :  Lewis  v.   Norwood,  4 
Harring.  460  ;  Fisher  v.  Stayton,  3  Id.  271 ; 
Beeson    v.    Beeson's    Admrs.,    1    Id.    466; 
Bailey  v.  Seal's  Special  Bail,  Id.  367  ;  so, 
also,  a  discharge  obtained  in  Pennsylvania 
has  been  held  good  in  New  Jersey:  Row- 
land et  al.  V.  Stevenson,  1  Halst.  149  ;  and 
in  the  same  state,  a  discharge  obtained  in 
New  York,  upon  a  contract  made  in  Penn- 
sylvania,   has    been    held   good :    Hale   v. 
Ross,  Penning.  590 ;  and  a  discharge  ob- 
tained   in    Massachusetts    has    been    pro- 
nounced valid  in  Pennsylvania:   Wheelock 
V.  Leonard,  20  Penn.  St.  440 ;   and  a  dis- 
charge obtained  in  Massachusetts,  upon  a 
contract  made  there,  with  citizens  of  New 
York,  has  been  held  good  in  New  Hamp- 
shire :  Brown  v.  Collins,  41  N.  H.  405  ;  but 
a  debt  contracted  in   Massachusetts,  be- 
tween  citizens   of  that  state,   which  was 
evidenced   by    note,    and    endorsed    to    a 
citizen  of  New  Hampshire,  can  be  collected 
by  the  holder  by  suit  in  the  state  of  New 
York,    notwithstanding    the    discharge   of 
the  maker  bv  the  insolvent  laws  of  Massa- 


OF    BANKRUPTCY   OF    NON-TRADERS. 


166 


statute  for  the  same  purpose,(5)  by  wliich  the  laws  then  existing  on  the 
subject  were   amended   and  consolidated.      The   relief   aflForded  to  the 
debtor  was  his  discharge  from  prison ;  and  the  act  accordingly  only  ap- 
plied to  persons  in  actual  custody  within  the  Avails  of  a  prison  in  Enghmd. 
Any  such  person  in  custody  upon  any  process  whatsoever,  for  or  by 
reason  of  any  debt,  damages,  costs,  sum  or  sums  of  money,  or  in  conse- 
quence of  contempt  of  any  court  whatsoever  for  non-payment  of  money 
or  costs,  taxed  or  untaxed,  might  at  any  time  within  the  *space    r^j^gj-i 
of  fourteen  days  next  after   the   commencement   of  his   actual 
custody,  or  afterAvards  by  permission  of  the  court,  apply  by  petition  to 
the  Court  for  the  Relief  of  Insolvent  Debtors  for  his  discharge  from  such 
custody,  according  to  the  provisions  of  the  act.(c)     In  the  country  the 
petition  Avas  referred  for  hearing  to  the  county  court  of  the  district  Avithin 
which    the    insolvent    Avas    in    custody. (t^)     The   insolvent    himself  was 
formerly   the  only  person  Avho  could  put   the  machinery  of  the  act  in 
motion  ;  but  afterAvards  the  creditor  at  Avhose  suit  the  prisoner  Avas  com- 
mitted to  prison  or   charged  in  execution  might,  if  not  satisfied  Avithin 
twenty-one  days  next  after  such  prisoner  should  have  been  so  committed 
or  charged  in  execution,  himself  petition  the  court  for  his  share  of  the 

(b)  Stat.  7  Geo.  IV.  c.  57,  continued  and  amended  by  stat.  11  Geo.  IV.  &  1  Will.  IV. 
c.  38. 

(c)  Stat.  1  &  2  Vict.  c.  110,  s.  35.  (d)  Stat.  10  &  11  Vict.  c.  102,  s.  10. 


chusetts :  Smith  v.  Gardner,  4  Bosw.  54 ; 
and  see  further  for  analogous  cases : 
Hempstead  v.  Reed,  6  Conn.  480  ;  Hiclcs  v. 
Brown,  12  Johns.  142  ;  Hare,  Exr.,  y.  Mo- 
netrie,  2  Yeates  435  ;  Donaldson  v.  Cham- 
bers, 2  Dall.  100 ;  Miller  v.  Hall,  1  Id.  229  ; 
Thompson  v.  Young,  Id.  294.  This  incon- 
sistency, however,  proceeds  from  a  comity 
between  the  different  states,  by  which  the 
same  regard  is  paid  by  one  state  to  the  in- 
solvent laws  of  a  sister  state,  as  that  state 
would  pay  to  the  insolvent  laws  of  the 
former  state,  as  will  be  seen  by  reference 
to  Walsh  V.  Nourse,  5  Binn.  381,  where 
Chief  Justice  Tilghman  says :  "  If  this 
matter  is  considered  on  principle,  it  is  not 
easy  to  discover  by  what  authority  any 
state  can,  by  its  laws,  affect  a  debt  con- 
tracted in  another  state,  where  the  creditor 
is  residing.  I  mean  how  it  can  affect  a 
debt  so  as  to  prevent  the  creditor  from 
bringing  an  action  in  another  state. 
Every  state  has  power  over  the  persons 


residing  within  its  territory,  and  there- 
fore, wliere  a  debt  is  discharged  by  the 
law  of  a  state  in  which  both  plaintiff  and 
defendant  reside,  another  state  ought  to 
pay  regard  to  it.  Repeated  decisions  by 
my  predecessors  in  this  court  have  placed 
thd  law  on  a  footing  somewhat  different 
from  the  principle  I  iiave  mentioned.  Our 
rule  has  been  to  pay  the  same  regard  to 
the  insolvent  laws  of  our  sister  states 
which  their  courts  pay  to  ours.  If  the 
matter  were  to  be  talien  up  anew,  I  should 
be  for  adhering  to  what  I  consider  the 
true  principle.  But,  not  without  consid- 
erable reluctance,  I  have  thought  myself 
bound  by  former  decisions,  as  I  have  de- 
clared in  the  case  of  Boggs  &  Davidson  v  . 
Teackle,"  &c.  ;  and  see,  also,  Mount  v. 
Bradford,  1  Miles  17  ;  Fisher  v.  Hyde,  3 
Yeates  256 ;  Smith  v.  Brown,  3  Binn.  201  ; 
Boggs  et  al.  v.  Teackle,  5  Id.  332  ;  Uilliard 
et  al.  V.  Greenleaf,  Id.  336,  and  note. 


167  OF  cnosES  in  action. 

relief,(c)  which  consisted  in  the  real  and  personal  estate  and  effects  of 
the  prisoner  being  vested  in  the  provisional  assignee  of  the  court  for  the 
benefit  of  his  creditors. 

On  the  filing  of  the  petition  either  of  the  debtor  or  of  the  creditor,  a 
vesting  order,  as  it  was  termed,  was  made  by  the  court.     By  this  order 
all  the°real  and  personal  estate  and  eflects  of  the  prisoner,  both  within 
this  realm  and  abroad  (except  his  wearing  apparel,  bedding  and  other 
such  necessaries  of  himself  and  his  family,  and  his  working  tools  and  im- 
plements, not  exceeding  in  the  whole  the  value  of  twenty  pounds),  and 
all  the  future  estate  to  Avhich  he  might  become  entitled  until  his  final  dis- 
charge, were  vested  in  the  provisional  assignee  for  the  time  being  of  the 
estates  and  effects  of  insolvent  debtors  in  England.(/)     The  court  might 
r*i  rsi    subsequently  *have  appointed  any  proper  person  or  persons  to  be 
■-         -^    assic^nees  of  such  estate  and  effects,  in  whom  the  same  accord- 
ingly vested  on  the  acceptance  of  the  appointment  being  signified  by  him 
or  them  to  the  court.(  (/)  The  estate  and  effects  of  the  prisoner  were  then 
sold  and  converted  into  money  by  the  assignees  in  the  manner  directed 
by  the  act.(A)     And  the  court  had  power  to  order  that  any  property  of 
the  prisoner  might  be  mortgaged,  instead  of  being  sold,  if  it  should  ap- 
pear to  the  court  that  his  debts  could  be  discharged  by  such  moans.(i) 
If  the  insolvent  were  a  beneficed  clergyman,  the  assignees  might  have 
obtained  a  sequestration  of  the  profits  of  the  benefice  for  the  payment  of 
his  debts.(A;)     And  if  the  insolvent  were  or  had  been  an  officer  under 
government,  or  in  the  service  of  the  East  India  Company,  a  portion  of 
his  pay,  half-pay,  salary,  emoluments  or  pension  might,  with  the  written 
consent  of  the  chief  officer  of  the  department  to  which  he  belonged  or  had 
belonged,  be  ordered  to  be  paid  to  the  assignees.(Z)     The  produce  of  the 
insolvent's  estate  was  then  divided  by  the  assignees  rateably  amongst  the 
creditors.(w)     And  if  any  prisoner  should  before  or  after  his  imprison- 
ment, being  in  insolvent  circumstances,  have  voluntarily  conveyed,  charged 
or  made  over  any  of  his  estate  to  or  in  trust  for  any  creditor  or  creditors, 
every  such  transaction  was  declared  to  be  fraudulent  and  void  as  against 
the  assignees,  if  made  Avithin  three  months  before  the  commencement  of 

(<■)  Sect.  36.  In  this  case,  however,  the  Insolvent  Court  had  no  adequate  means  of 
compelling  the  prisoner  to  file  a  schedule  of  his  property:  Hollis  v.  Bryant,  12  Sim. 
492,  501. 

(/)  Stat.  1  &  2  Vict.  c.  110,  s.  37  ;  Ford  v.  Dabbs,  5  M.  &  G.  309  (E.  C.  L.  R.  a^oI.  44). 

(g)  Stat.  1  &  2  Vict.  c.  110,  a.  45. 

(A)  Sect.  47.     See  Wright  v.  Maunder,  4  Beav.  512. 

(i)  Sect.  48.  [k)  Sect.  55.     See  Stat.  12  &  13  Vict.  c.  67. 

(/)  Stat.  1  &  2  Vict.  c.  110,  s.  5G.  (?«)  Sect.  62. 


OF   BANKRUPTCY   OF    NON-TRADERS.  168 

tlie  party's  imprisonment,  or  with  the  view  or  intention  on  his  part  of 
petitioning  the  court  for  his  discharge  under  the  act.(w) 

*Within  fourteen  days  next  after  the  making  of  the  vesting  r^^^gg-i 
order,  or  within  such  further  time  as  the  court  thought  reason- 
able, a  schedule  was  required  to  be  delivered  into  the  court,  signed  by 
the  prisoner,  containing  a  full  description  of  his  name,  trade  or  profes- 
sion, place  of  abode,  debts  and  property  of  every  description.(o)  Imme- 
diately after  the  filing  of  this  schedule,  a  time  and  place  were  appointed 
by  the  court  for  the  prisoner  to  be  brought  up  to  be  dealt  with  according 
to  the  act,(j?)  of  which  due  notice  was  given  to  the  creditors. ((^)  His 
schedule  was  then  examined  into  on  oath  by  the  court ;  and  any  creditor 
might  oppose  his  discharge,  and  for  that  purpose  might  put  such  ques- 
tions to  the  prisoner  and  examine  such  witnesses  as  the  court  thought 
fit.(;*)  After  such  examination  the  court  was  then  empowered,  upon  the 
prisoner  swearing  to  the  truth  of  his  schedule,  and  executing  the  war- 
rant of  attorney  to  be  mentioned  afterwards,  to  adjudge  that  such  pri- 
soner should  be  discharged  from  custody,  and  entitled  to  the  benefit  of 
the  act  as  to  the  several  debts  and  sums  of  money  mentioned  in  the 
schedule,  due,  or  claimed  to  be  due,  at  the  time  of  making  the  vesting 
order,  from  the  prisoner  to  the  persons  named  in  his  schedule,  or  for 
which  such  persons  should  have  given  him  credit  before  the  time  of  mak- 
in<:'  such  vesting  order,  and  which  were  not  then  payable,  and  as  to  the 
claims  of  all  other  persons,  not  known  to  the  prisoner  at  the  time  of  the 
adjudication,  who  might  have  been  endorsees  or  holders  of  any  negotiable 
security  set  forth  in  the  schedule.(s)  The  discharge  might  have  been,  in 
the  discretion  of  the  court,  either  immediate,  or  might  have  been  post- 
poned for  six  months  ;{t)  and  in  certain  cases  of  flagrant  misconduct,  it 
might  have  *been  postponed  for  any  period  not  exceeding  three  pj-jQ-i 
years. (w) 

The  insolvent  being  thus  discharged  was  free  from  any  future  impri- 
sonment, and  his  property  was  also  free  from  execution  at  the  suit  of  his 
creditors,  for  the  debts  mentioned  in  the  schedule.(a;)     And  the  costs  of 
actions  and  suits,(?/)  and  the  claims  of  annuity  creditors,(2)  might    have 

(n)  Sect.  59.     See  Harris  v.  Lloyd,  6  Beav.  426  ;  Jackson  v.  Thompson,  2  Q  .  B.  887 
(E.  C.  L.  R.  vol.  42) ;  3  M.  &  G.  621  (E.  C.  L.  R.  vol.  42). 
(o)  Stat.  1  &  2  Vict.  c.  110,  s.  69.  (p)  Sect.  10. 

(q)   Sect.  VI.  [r)  Sect.  72. 

(s)  Sect.  75  ;  Leonard  v.  Baker,  15  M.  &  W.  202. 
(t)  Sect.  76.  (m)  Sects.  77,  78. 

(x)  Sects.  90,  91.  (.y)  Sect.  79. 

(z)  Sect.  80.     See  Bennett  v.  Burton,  12  Ad.  &  E.  657  (E.  C.  L.  R.  vol.  40). 


170  OF   CnOSES    IN   ACTION. 

been  comprised  in  such  discharge.  The  discharge,  however,  was  not, 
like  that  of  bankruptcy,  final  and  complete;  for  before  any  adjudication 
was  made,  the  prisoner  was  required  to  execute  a  warrant  of  attorney, 
authorizing  the  entering  up  of  a  judgment  against  him  in  one  of  the 
superior  courts  at  Westminster,  in  the  name  of  the  assignee  or  assignees, 
for  the  amount  of  the  prisoner's  unsatisfied  debts  as  stated  in  the  sche- 
dule. And  if  at  any  time  it  should  have  appeared  to  the  satisfaction  of 
the  court  that  the  prisoner  was  of  ability  to  pay  such  debts,  or  any  part 
thereof,  or  that  he  was  dead  leaving  assets  for  that  purpose,  the  court 
might  have  permitted  execution  to  be  taken  out  upon  the  judgment  for 
such  sum  as  it  might  have  ordered,  such  sum  to  be  distributed  rateably 
among  the  creditors. (a) 

Under  certain  circumstances,  an  insolvent  might,  by  other  acts  of 
parliament  have  obtained  as  complete  a  discharge  from  his  debts 
as  if  he  had  become  bankrupt.(5)  The  acts,  however,  only  applied 
to  such  persons  as  had  become  indebted  without  any  fraud,  or 
|-^^_^,  *gross  or  culpable  negligence.(c)  Any  person  so  indebted,  not 
being  a  trader  wnthin  the  bankrupt  laws,  or  being  sucli  trader, 
but  owing  debts  amounting  in  the  whole  to  less  than  300Z.,  might,  whether 
he  should  have  already  been  in  prison  or  not,[d)  have  applied  for  the  pro- 
tection of  his  person  from  process,  on  making  a  full  disclosure  and  sur- 
render of  all  his  estate  and  effects  for  the  payment  of  his  debts.  The 
application  was  made  to  the  Court  for  the  Relief  of  Insolvent  Debtors. (<?) 
But  if  the  petitioner  should  not  have  resided  for  the  last  six  calendar 
months  within  twenty  miles  of  London,  but  should  have  resided  for  that 
time  within  the  district  of  a  County  Court,  application  must  then  have 
been  made  to  such  County  Court. {/)  The  whole  estate  and  effects  of 
the  insolvent  were  then  vested  in  the  provisional  assignee  of  the  Insolvent 
Court,  or  in  the  clerk  of  the  County  Court,  as  the  case  might  be,  for  the 
benefit  of  all  the  creditors  rateably. ((/)  But  the  wearing  apparel,  &c., 
of  the  petitioner  and  his  family,  not  exceeding  the  value  of  201.,  might 
have  been  excepted,  as  in  the  other  Insolvent  Act,  provided  such  excepted 
articles,  and  the  values  thereof,  were  fully  and  truly  described. (/i)  With 
the  exception  of  the  warrant  of  attorney  given  by  the  prisoner  under  the 

(a)  Stat.  1  &  2  Vict.  c.  110,  s.  87.     See  also  sects.  88  and  89.     See  Hawkes  v.  Ilalli- 
well,  2  Sm.  &  G.  498. 

(i)  Stat.  5  &  C  Vict.  c.  116,  s.  87  ;  7  &  8  Vict.  c.  96  ;   10  &  11  Vict.  c.  102. 

(c)  Stats.  5  &  6  Vict.  c.  116,  s.  4  ;  7  &  8  Vict.  c.  96,  s.  24. 

(rf)  Stats.  7  &  8  Vict.  c.  96,  s.  6  ;   10  &  11  Vict.  c.  102,  s.  7. 

(c)  Stat.  10  &  11  Vict.  c.  103,  ss.  6.  8.  (/)  Ibid.  s.  6. 

(ff)  Stats.  5  &  6  Vict.  c.  116,  s.  7 ;   1 0  &  11  Vict.  c.  102,  s.  5. 

{k)  Stat.  7  &  8  Vict.  c.  96,  s.  9. 


OF    BANKRUPTCY   OF   NON-TRADERS.  171 

other  Insolvent  Act,  the  provisions  of  these  acts  were  generally  similar 
to  those  of  that  act.  The  filing  of  every  petition  under  these  acts  was 
required  to  be  registered  in  the  registry  for  judgments  of  the  County 
Courts. (z) 

In  the  reign  of  Geo.  III.  an  act  was  passed  for  the  discharge  of 
debtors  in  execution  upon  any  judgment  *for  any  debt  or  r*|'j'21 
damages  not  exceeding  20Z.,  exclusive  of  costs.(A:)  But  this  act 
is  now  repealed. (/)  An  act  was  also  passed  in  the  early  part  of  the 
present  reign  for  facilitating  arrangements  between  debtors  and  cred- 
itors,(w)  which  applied  only  to  such  debtors  as  were  not  traders  within 
the  bankrupt  laws.     But  this  act  also  has  been  repealed.(n) 

The  Bankruptcy  Act,  1861, (o)  made  a  complete  change  in  the  law 
with  respect  to  the  insolvency  of  persons  not  in  trade.  That  act  repealed 
all  the  above-mentioned  acts  for  the  relief  of  insolvent  debtors,  and 
abolished  the  court  for  their  relief.(p)  All  persons  whether  traders  or 
not  became  subject  to  the  bankrupt  law  ;{q)  but  no  person  was  to  be  ad- 
judged a  bankrupt,  except  in  respect  of  some  one  of  the  acts  of  bank- 
ruptcy described  in  the  act  as  applicable  to  a  non-trader.(r)  The 
Bankruptcy  Act,  1861,  also  contained  provisions  for  the  discharge  from 
prison  of  pauper  and  lunatic  prisoners  for  debt.  These  provisions  ap- 
plied both  to  traders  and  non-traders.(s)  This  act  also  contained  pro- 
visions for  the  payment  of  a  portion  of  the  pay,  half-pay,  salary, 
emolument  or  pension  of  any  bankrupt  to  his  assignees  if  sanctioned  by 
the  chief  officer  of  the  department  to  which  he  might  have  belonged  •,{t) 
also  for  the  sequestration  of  the  profits  of  the  benefice  of  any  bankrupt 
who  was  a  beneficed  clergyman,  (m)  But  the  Bankruptcy  Act,  1861,  has 
*now  been  repealed,(a;)  and  its  place  is  supplied  by  the  Bank-  p^^YS] 
ruptcy  Act,   1869.(3/)^     Imprisonment  for  debt  has  also  been 

{i)  Stat.  IT  &  18  Vict.  c.  16,  s.  2.     See  ante,  p.  105. 
{k)  Stat.  48  Geo.  III.  c.  123.     See  Toison  v.  Dykes,  1  Phillips  439. 
(1)  Stat.  32  &  33  Vict.  c.  83.  (m)  Stat   1  k  8  Vict.  c.  70, 

(w)  Stat.  32  &  33  Vict.  c.  83.  (o)  Stat.  24  &  25  Vict.  c.  134. 

{p)  Sects.  19-27.  (?)  Sect.  69. 

(r)  Sect.  69. 

(s)  Sects.  98-107  ;  Bramwell  v.  Eglinton,  Q.  B.  10  Jur.  N.  S.  583. 
{t)  Stat.  24  &  25  Vict.  c.  134,  s.  134. 

(m)  Sect.  135  ;  Hopkins  v.  Clarke,  4  B.  &  S.  83G  (E.  C.  L.  R.  vol.  IIG),  affirmed,  5  B. 
&  S.  753  (E.  C.  L.  R.  vol.  117).- 

(x)  Stat.  32  &  33  Vict.  c.  83.  (y)  Stat.  32  &  33  Vict.  c.  71. 

1  As  soon  as  the  United  States  Bankrupt     pended  all  action  upon  future  cases  arising 
Act  went  into  operation,  it  ipso  facto  sus-     under    state    insolvent    laws  :    Common- 


173  OF  cnosEs  ix  action. 

aboli.slio.l.(^)  UikKt  the  present  act  a  non-trader  is  still  liable  to  be 
made  a  bankrupt,  and  the  acts  of  l)ankrui)tcy  have  already  been  enume- 
rated.(a) 

"Where  a  bankrupt  is  a  beneficed  clergyman,  the  trustee(6)  may  apply 
for  a  se(|Uestration  of  the  profits  of  the  benefice,  and  the  certificate  of  the 
appointment  of  the  trustee  shall  be  sufficient  authority  for  the  granting 
of  sequestration  Avithout  any  writ  or  other  proceeding,  and  the  same  shall 
accordingly  be  issued  as  on  a  writ  of  levari  facias(c)  founded  on  a  judg- 
ment against  the  bankrupt,  and  shall  have  priority  over  any  other  se([ues- 
tration  issued  after  the  commencement  of  the  bankruptcy,  except  a  seques- 
tration issued  before  the  date  of  the  order  of  adjudication  by  or  on  behalf 
of  a  person  who  at  the  time  of  the  issue  thereof  had  not  notice  of  an  act 
of  bankruptcy  committed  by  the  bankrupt,  and  available  against  him  for 
ailjudication  ;  but  the  sequestrator  shall  allow  out*of  the  profits  of  the 
benefice  to  the  bankrupt,  while  he  performs  the  duties  of  the  parish  or 
place,  such  an  annual  sum,  payable  quarterly,  as  the  bishop  of  the  dio- 
cese in  which  the  benefice  is  situate  directs  ;  and  the  bishop  may  appoint 
to  the  bankrupt  such  or  the  like  stipend  as  he  might  by  law  have  ap- 
pointed to  a  curate  duly  licensed  to  serve  the  benefice  in  case  the  bank- 
rupt had  been  non-resident. ((ij 

Where  a  bankru))t  is  or  has  been  an  oflficer  of  the  army  or  navy,  or  an 
officer  or  clerk  or  otherwise  employed  or  engaged  in  the  civil  service  of 
r*i  "11  *^^®  crown,  or  *is  in  the  enjoyment  of  any  pension  or  compensation 
^  granted  by  the  Treasury,  the  trustee  during  the  bankruptcy,  and 

the  registrar  after  the  close  of  the  bankruptcy,  shall  receive  for  distribu- 
tion amongst  the  creditors  so  much  of  the  bankrupt's  pay,  half-pay, 
salary,  emolument,  or  pension  as  the  court,  upon  the  application  of  the 
trustee,  thinks  just  and  reasonable,  to  be  paid  in  such  manner  and  at 
such  times  as  the  court,  with  the  consent  in  writing  of  the  chief  officer  of 

(z)  Stat.  32  &  33  Vict.  c.  62,  an(c,  p.  103. 

(a)  Ante,  pp.  135,  138.  (b)  Ante,  p.  141. 

(c)  Ante,  p.  52.  (d)  Stat.  32  &  33  Vict.  c.  Tl,  s.  88. 

wealth  J'.  O'Hara,   6  Int.   Rev.  Rec.   125;  v.  Place,  1  B.  R.  204;  Clark  v.  Bininger,  3 

Way  V.  Bardwcll,  97  Mass.  24G ;  s.  c.  3  B.  Id.  129;  ThornhuU  v.  Bank  of  Louisiana, 

R.  115;   Van  Nostrand  v.  Barr,  2  Id.  154;  5  Id.  367.     But  it  does  not  divest  the  state 

Martin  v.  Berry,  Id.  188;  Bank  of  Louisiana,  courts  of  the  jurisdiction  necessary  to  the 

3  Id.  110;  Cassard  I'.  Kroner,  4  Id.  185.  See  final  administration  of  the  estate  of  an  in- 

contra  :  Hawkins,  17  Am.  L.  R.  205 ;  s.  c.  2  solvent,  who  had  made  a  surrender  previ- 

B.  R.  122;   Maltbie  »•.  Ilotchkiss,  5  Id.  485;  ous  to  its  passage:  Meekins  i^.  Creditors, 

and  see  also,  as  to  this  subject:  Sedgwick  19  La.  497  ;  s.  c.  3  B.  R.  126. 


OF   BANKRUPTCY   OF    NON-TRADERS.  174 

the  department  under  which  the  pay,  half-pay,  salary,  emolument,  pen- 
sion, or  compensation  is  enjoyed,  directs, (e) 

Where  a  bankrupt  is  in  the  receipt  of  a  salary  or  income  other  than  as 
aforesaid,  the  court  upon  the  application  of  the  trustee  shall  from  time 
to  time  make  such  order  as  it  thinks  just  for  the  payment  of  such  salary 
or  income,  or  of  any  part  thereof,  to  the  trustee  during  the  bankruptcy, 
and  to  the  registrar  if  necessary  after  the  close  of  the  bankruptcy,  to  be 
applied  by  him  in  such  manner  as  the  court  may  direct. (/) 

After  the  adjudication  of  bankruptcy  has  taken  place,  the  proceedings 
are  the  same  whether  the  bankrupt  may  have  been  a  trader  or  not. 

(c)  Stat.  32  &  33  Vict.  c.  71,  s.  89.  (/)  Sect.  90. 


[*175] 


♦CHAPTER  VI. 

OF    INSURANCE. 


IlAViNrr  now  considered,  thougli  very  briefly,  tlie  subject  of  debts 
generally,  tliere  remain  certain  debts,  payable  on  contingencies,  wliich 
deserve  a  separate  notice,  namely,  debts  arising  under  contracts  to 
insure  effected  by  policies  of  insurance.  A  policy  of  insurance,  or  assur- 
ance, is  tlie  name  given  to  an  instrument  by  which  a  contract  to  insure 
is  entered  into;  and  a  contract  to  insure  is  a  contract  either  to  indemnify 
against  a  loss  which  may  arise  on  the  happening  of  some  event,  or  to 
pay,  on  the  happening  of  some  event,  a  sum  of  money  to  the  person 
insured.^  The  most  usual  kinds  of  insurance  are,  insurance  of  lives, 
insurance  against  loss  by  fii'e,  and  insurance  of  ships  and  their  cargoes 
against  the  perils  of  the  seas. 

And,  first,  as  to  life  insurance.^     The  advantages  of  life  insurance  are 

1  Insurance  is  a  contract,  whereby  for  a 
stipulated  consideration,  one  party  under- 
takes to  indemnify  tlie  other  against  cer- 
tain risks.  Marine  insurance  is  a  contract, 
whereby  for  a  consideration  stipulated  to 
be  paid  by  one  interested  in  a  ship,  freight, 
or  cargo,  subject  to  the  risks  of  marine 
navigation,  another  undertakes  to  in- 
demnify him,  against  some  or  all  of  those 
risks,  during  a  certain  period  or  voyage. 
The  other  species  of  insurance    most  in 

use,  are  those  against  loss  by  fire  on  land, 

and  loss  of  life  :   1  Phill.  on  Ins.  1. 

Mr.  Justice  Lawrence  says  :  "  The  con- 
tract of  insurance  is  applicable  to  protect 

men  against  uncertain  events,  which  may 

in  anywise  be  of  a  disadvantage  to  them:" 

5  B.  &  P.  301,  Lucena  v.  Crawford.     See, 

for   sundry  definitions  of  insurance,   Mr. 

Sergt.  Coleridge's  argument  in  Patterson 

V.  Powell,  9  Bing.  320;   1  Phill.  on  Ins.,  p. 

1,  n.  1. 

"Insurance  is  a  contract,  by  which  the 

one  party,  in  consideration  of  a  price  paid 

to   him    adequate   to   the    risk,   becomes 

security  to   the  other,  that  he  shall   not 

suffer  loss,  damage,  or  prejudice,  by  the 


happening  of  the  perils  specified,  to  certain 
things  which  may  be  exposed  to  them :" 
5  Bos.  &  Pul.  301,  Lawrence,  J. 

Insurance  may  be  defined,  a  contract, 
by  which,  in  consideration  of  a  certain 
sum,  one  party  agrees  to  indemnify  another, 
against  risks  incurred  in  a  certain  manner, 
during  a  stipulated  period:  48  Law  Mag- 
251. 

The  written  instrument  in  wliicli  the 
contract  of  marine  insurance  is  embodied, 
is  called  a  policy  of  insurance.  It  is  a 
printed  or  written  contract,  in  which  the 
premium,  the  risk  insured  against,  the 
names  of  the  underwriters,  and  the  sum 
insured,  are  to  be  inserted  :  1  Arnould  on 
Ins.  16. 

Policy  is  the  name  given  to  the  instru- 
ment by  which  the  contract  of  indemnity 
is  effected  between  the  insurer  and  in- 
sured ;  and  it  is  not,  like  most  contracts, 
signed  by  both  parties,  but  only  by  the 
insurer,  who,  on  that  account,  it  is  sup- 
posed, is  denominated  an  underwriter: 
Park  on  Ins.  1. 

2  Insurance  upon  life,  is  a  contract,  by 
which    the    insurers    undertake,    in    con- 


OF   INSURANCE.  175 

now  SO  well  known,  that  there  is  no  occasion  to  dilate  upon  them.  By 
payment  of  a  small  annual  premium  during  the  life  insured,  a  sum  of 
money  may  he  secured  at  his  decease,  applicable  to  the  payment  of  his 
debts,  for  a  provision  for  his  family,  or  any  other  purposes.  But  as  the  in- 
surance of  lives  and  other  events,  in  which  the  person  insured  has  no  inter- 
est, is  often  nothing  more  than  a  mischievous  kind  of  gaming,  it  is  enacted, 
by  an  act  of  the  14th  of  George  III.,  that  no  insurance  shall  be  made 
on  the  life  of  any  person,  or  on  any  other  event  whatsoever,  wherein  the 
person  for  wliose  use  and  benefit,  or  on  whose  account,  such  policy  shall 
be  made,  shall  have  no  interest,  or  by  *way  of  gaming  or  wager-  r*;[Y61 
ing ;  and  that  every  such  assurance  shall  be  null  or  void,  to  all 
intents  and  purposes  whatsoever  ;(a)  and  that  it  shall  not  be  lawful  to 
make  any  policy  on  the  life  of  any  person,  or  other  event,  without  insert- 
ing in  the  policy  the  person's  name  interested  therein,  or  for  whose  use 
or  benefit,  or  on  whose  account,  such  policy  is  made;(6)  and  that  in  all 
cases  where  the  insured  hath  an  interest  in  such  life  or  event,  no  greater 
sum  shall  be  recovered  or  received  from  the  insurer  than  the  amount  or 
value  of  the  interest  of  the  insured  in  such  life  or  other  event.(c)  But 
this  act  does  not  extend  to  insurances  bo7id  fide  made  on  ships,  goods  or 
merchandises,(c?)  with  respect  to  which  provisions  have  been  made  by 
another  act  of  parliament. (e)  Every  person  is  considered  to  have  a 
sufficient  interest  in  the  duration  of  his  own  life  to  sustain  his  own 
insurance  of  it;  but  if  he  should  afterwards  put  an  end  to  his  life,  or  die 
by  the  sentence  of  the  law,  the  insurance  will  be  void  in  the  hands  of  his 
executors;  and  no  provision  to  the  contrary  contained  in  the  policy  of 

(a)  Stat.  14  Geo.  III.  c.  48,  s.  1  ;  Shilling  v.  Accidental  Death  Insurance  Company, 
2  H.  &  N.  42  ;  Hebdon  v.  West,  3  B.  &  S.  579  (E.  C.  L.  R.  vol.  113). 

(6)  Sect.  2  ;  Hodson  v.  Observer  Life  Assurance  Society,  8  E.  &  B.  40  (E.  C.  L.  R. 
vol.  92). 

(c)  Sect.  3.  (d)  Sect.  4. 

(e)  Stat.  19  Geo.  II.  c.  37,  amended  by  stat.  27  &  28  Vict.  c.  56,  s.  1. 

sideration  of  a  gross  sum  paid  down,  or,  by  which  the  underwriter,  for  a  certain 
as  is  most  usual,  of  an  annual  payment,  to  sum,  proportioned  to  the  age,  health,  pro- 
pay  the  person  for  whose  benefit  the  in-  fession,  and  other  circumstances  of  the 
surance  is  effected,  or  the  personal  repre-  person  whose  life  is  the  object  of  in- 
sentatives  of  the  insured,  as  the  case  may  surance,  engages  that  the  person  shall  not 
be,  either  a  stipulated  sum,  or  an  annuity,  die  within  the  time  limited  in  the  policy ; 
upon  the  death  of  the  party  insured,  when-  or  if  he  do,  that  he  will  pay  a  sum  of 
ever  it  may  happen,  if  the  insurance  be  money  to  him  in  whose  favor  the  policy 
made  for  the  whole  term  of  life;  or,  if  the  was  granted:"  Angell  on  Fire  and  Life 
insurance  be  made  for  a  limited  period,  in  Insurance,  p.  334. 

case    the    death    of  the    insured    happens  Dalby  v.  The  India  and  London  Life  As- 

within  that  period:  Ellis  on  Ins.  101.  surance  Co.,  28  Eng.  L.  &  Eq.  312. 
"An  insurance  upon  life  is  a  contract, 


17G  OF   CIIOPES   IN   ACTION. 

infeuranoo  will  be  of  any  avail. (/)  The  assignee  of  a  person  who  has 
insured  his  own  life  is  not  required  by  the  above-mentioned  statute  to 
have  any  interest  in  the  life  of  such  person,  for  the  statute  makes  no 
mention  of  the  assirrnment  of  policies.(,(jr)  A  creditor  has  an  insurable 
interest  in  the  life  of  his  debtor  to  the  extent  of  his  debt ;  but  if  the  debt 
should  be  discharged  from  any  other  source,  it  was  formerly  hold  that 
r*!?"!  the  policy  would  *thenceforth  be  void  for  want  of  interest. (/i) 
^  '-^  Tl)is  strict  law  was  not  however  usually  taken  advantage  of  by 
the  assurance  offices,  who  generally  paid  the  sums  insured  without  any 
inquiry  as  to  the  extent  of  the  interest  of  the  party  insured  in  the 
life  on  which  the  insurance  had  been  effected. (^)  And  by  recent  de- 
cisions,(A:)  the  doctrine  that  a  contract  for  life  assurance  is  a  contract 
for  indemnity  only  has  been  overruled ;  so  that  if  the  person  insuring 
has  an  insurable  interest  at  the  time  of  effecting  the  policy,  the  subse- 
quent loss  of  such  interest  will  not  render  the  policy  void.  An  interest 
as  trustee  is  sufficient  to  support  a  life  insurance.(^)  But  a  father  has 
not  such  an  interest  in  the  life  of  his  son  as  to  warrant  an  insur- 
ance of  it  for  his  own  benefit. (?7i)^     By  recent  statutes,(w)  policies  of 

(/)  Amicable  Assurance  Society  v.  Bolland,  4  Bligh,  N.  S.  194,  reversing  Bolland  v. 
Disney,  3  Russ.  351 ;  see  Clift  v.  Schwabe,  3  C.  B.  437  (E.  C.  L.  R.  vol.  54). 

(ff)  Ashley  v.  Ashley,  3  Sim.  149. 

(A)  Godsall  V.  Boldero,  9  East  72  ;  s.  c.  2  Smith's  Leading  Cases  157. 

(i)  Lloyd  &  Goold,  Cas.  Temp.  Sugden  291. 

(k)  Dalby  v.  India  &  London  Life  Assurance  Company,  15  C.  B.  365  (E.  C.  L.  R.  vol. 
81) ;  8.  c.  18  Jur.  1024 ;  Law  v.  London  Indisputable  Life  Policy  Company,  1  Kay  & 
John.  223. 

(l)  Tidswell  t-.  Angerstein,  Peake  N.  P.  Cases  151 ;  Collett  v.  Morrison,  9  Hare  1G2, 
176, 

(m)  Halford  v.  Kymer,  10  B.  &  C.  724  (E.  C.  L.  R.  vol.  21). 

(n)  Stats.  16  &  17  Vict.  cc.  59,  63,  ss.  10,  11;  23  &  24  Vict.  c.  Ill,  s.  10;  28  &  29 
Vict.  c.  96,  s.  15. 

^It  is  pretty  well  settled,  that  he  who  is  and  that  he  may  insure  for  a  larger  sum 
to  reap  the  benefit  of  an  insurance  made  than  his  debt ;  Am.  Life  and  Health  Ins. 
upon  the  life  of  a  person,  must  have  some  Co.  v.  Robertshaw,  26  Penn.  St.  189  ;  so 
interest  in  that  life  :  Valton  v.  National  also,  that  a  father  has  a  sufficient  insura- 
Loan  Fund  Life  Asso.  Soc,  22  Barb.  9;  ble  interest  in  the  life  of  his  son:  Loomas 
Ruse  V.  Mutual  Ins.  Co.,  23  N.  Y.  516;  but  v.  Eagle  Life  and  Health  Ins.  Co.,  6  Gray 
the  interest  necessary,  is  slight ;  Hoyt  v.  396  ;  a  divorced  Avife  in  that  of  her  former 
N.  Y.  &c.  Ins.  Cq.,  3  Bosw.  440  ;  MuUer  v.  husband  :  McKee  v.  Phoenix  Ins.  Co.,  28 
Eagle  Life  and  Health  Ins.  Co.,  2  E.  D.  Mo.  383;  and  a  clerk  in  the  life  of  a  part- 
Smith  268;  Bevin  v.  The  Com.  Mutual  ner  who  has  promised  to  employ  him  a 
Life  Ins.  Co.,  23  Conn.  244.  It  has  been  certain  number  of  years  at  a  fixed  salary, 
decided  on  this  point,  that  a  creditor  has  to  the  amount  of  the  salary  for  the  number 
a  sufficient  interest  in  the  life  of  his  debt-  of  years  remaining  :  Hebdon  v.  West,  3  B. 
or,  to  insure  that  life ;  Morrell  v.  Trenton  &  S.  578. 
Mutual  Life  and  F.  Ins.  Co.,  10  Cush.  282;  An  assignee   of  a  policy  of  life   insu- 


OF   INSURANCE. 


177 


life  insurance  are  subject  to  stamp  duties  according  to  the  table  in  the 

note.(o)^ 

An  act  has  recently  been  passed  to  enable  assignees  of  policies  of  life 
assurance  to  sue  thereon  in  their  own  *names.(2j)  It  provides  that  r-j,-.  ^o 
any  person  or  corporation  entitled,  by  assignment  or  other  deriva- 
ble title,  to  a  policy  of  life  assurance,  and  possessing  at  the  time  of  action 
brought  the  right  in  equity  to  receive  and  the  right  to  give  an  effectual 
discharge  to  the  assurance  company  liable  under  such  policy  for  moneys 
thereby  assured  or  secured,  shall  be  at  liberty  to  sue  at  law  in  the  name  of 
such  person  or  corporation  to  recover  such  moneys. (g')  In  any  action  on 
a  policy  of  life  assurance,  a  defence  on  equitable  grounds,  or  a  reply  to 


(o)    Where  the  sum  insured  does  not  exceed  251.    .         .         .         .         .         .03 

Exceeding   251.,  and  not  exceeding  500/.,   then  for  every  50Z.  and  any 

fractional  part  of  501.    ..........     0     6 

Exceeding  500/.  and  not  exceeding  1000/.,  then  for  every  100/.  and  any 

fractional  part  of  100/.  ..........     1     0 

Exceeding  1000/.,  then  for  every  1000/.  and  any  fractional  part  of  1000/.  10     0 
The  stamp  on  policies  for  accidental  death  or  jiersonal  injury  is  regu- 
lated by  Stat.  28  &  29  Vict.  c.  96,  ss.  10-15. 
{p)  Stat.  30  &  31  Vict.  c.  144.  (q)  Sect.  1. 


ranee,  however,  is  not  req-uired  to  have 
any  interest  in  the  life  insured  :  St.  John 
V.  Am.  Mutual  Life  Ins.  Co.,  3  Kernan  31 ; 
nor  need  interest  be  shown  to  entitle  him 
to  his  action:  Trenton  Mutual  Life  and  F. 
Ins.  Co.  V.  Johnson,  4  Zabr.  576. 

In  Ruse  v.  Mutual  Benefit  Life  Ins.  Co., 
26  Barb.  556,  it  was  held,  that  where  the 
statement  of  interest  has  been  accepted  by 
the  company,  it  is  sufficient  proof  of  in- 
terest. 

1  The  tax  imposed  on  policies  of  insu- 
rance, by  the  Internal  Revenue  Act,  is  as 
follows: 

Insurance  [Life). — Policy  of  insur- 
ance or  other  instrument,  by  what- 
ever name  the  same  shall  be  called, 
whereby  any  insurance  shall  be 
made  upon  any  life  or  lives. 
When  the  amount  insured  shall  not 
exceed    one     thousand     dollars, 

twenty-five  cents, 25 

Exceeding  one  thousand  dollars 
and  not  exceeding  five  thousand 
dollars,  fifty  cents, 50 


Exceeding    five    thousand   dollars, 

one  dollar, $1  00 

Insurance  [3farine,  hiland  and  Fire.) 
— Each  policy  of  insurance,  or 
other  instrument,  by  .whatever 
name  the  same  shall  be  called, 
by  which  insurance  shall  be 
made  or  renewed  upon  property 
of  any  description ;  whether 
against  perils  by  the  sea,  or  by 
fire,  or  other  peril  of  any  kind, 
made  by  any  insurance  company, 
or  its  agents,  or  by  any  other 
company  or  person,  the  premium 
of    which    does    not    exceed    ten 

dollars,  ten  cents, 10 

Exceeding  ten,  and  not.  exceeding 

fifty  dollars,  twentj'-five  cents,     .         25 
Exceeding  fifty  dollars,  fifty  cents,  .         50 
Sec.  170.  Schedule  B.  Tit.  Ins.  2  Bright- 
ly's  U.  S.  Dig.,  p.  379,  sec.368. 

The  stamp  duty  on  the  assignment  of 
a  policy  of  insurance  is  the  same  as  re- 
quired on  the  policy.  Id.  2  Brightly's 
Dig.,  p.  380,  sec.  371. 


178  OF  cnosES  ix  action. 

such  (k'fence  on  similiir  grouiuls,  may  be  respectively  pleaded  and  relied 
upon  in  the  same  manner  and  to  the  same  extent  as  in  any  other  per- 
sonal action. (r)  No  assignment  made  after  the  passing  of  the  act  of  a 
policy  of  life  assurance  shall  confer  on  the  assignee  therein  named,  his 
executors,  administrators  or  assigns,  any  right  to  sue  for  the  amount  of 
such  policy,  or  the  moneys  assured  or  secured  thereby,  until  a  written 
notice  of  the  date  and  purport  of  such  assignment  shall  have  been  given 
to  the  assurance  company  liable  under  such  policy  at  their  principal 
place  of  business  for  the  time  being;  and  the  date  on  which  such  notice 
shall  be  received  shall  regulate  the  priority  of  all  claims  under  any  as- 
signment;  and  a  payment  bond  fide  made  in  respect  of  any  policy  by 
any  assurance  company  before  the  date  on  which  such  notice  shall  have 
been  received,  shall  be  as  valid  against  the  assignee  giving  such  notice 
as  if  the  act  had  not  been  passed. (s)  Every  assurance  company  is  re- 
quired on  every  policy  issued  by  them  after  the  30th  of  September, 
1807,  to  specify  their  principal  place  or  places  of  business  at  which 
notices  of  assignment  may  be  given  in  pursuance  of  the  act.(f)  And 
r*17Q1  ®v^^J  assurance  company  to  whom  notice  shall  *have  been  duly 
^  given  of  the  assignment  of  any  policy  under  which  they  are  liable, 

shall,  upon  the  request  in  writing  of  any  person  by  whom  any  such 
notice  was  given  or  signed,  or  of  his  executors  or  administrators,  and 
upon  payment  in  each  case  of  a  fee  not  exceeding  five  shillings,  deliver 
an  acknowledgment  in  writing  under  the  hand  of  their  principal  officer 
of  their  receipt  of  such  notice  ;  and  every  such  written  acknowledgment, 
if  signed  by  a  person  being  de  jure  or  de  facto  the  principal  officer  of  the 
company  whose  acknowledgment  the  same  purports  to  be,  shall  be  con- 
clusive evidence  as  against  the  company  of  their  having  duly  received 
the  notice  to  which  such  acknowledgment  relates. (it) 

Insurance  against  fire  is  a  contract  to  indemnify  against  loss  by  fire, 
and  is  usually  renewed  from  year  to  year  on  payment  of  a  premium,' 

(r)  Stat.  30  &  31  Vict.  c.  144,  s.  2.  (s)  Sect.  3. 

{I)  Sect.  4.  (w)  Sect.  6. 

'  Fire  insuraace,   is  a  contract    in    the  the  premium   which   he  receives,   uiider- 

nature  of  an  indemnity,  given   by  the   iu-  taites  to  indemnify  the  insured  against  all 

surers,  against  such   loss   or  damages  by  losses  which  he  may  sustain  in  his  house, 

fire  as  may  happen   to  the  insured,  iu  re-  or  goods,  by  means  of  fire,  within  tlie  time 

spect  ot  the  liouses,  buildings,  stock,  mer-  limited  in  the  policy:  2  Park,  on  Ins.  (Eng. 

chandise,  or  other  articles  covered  by  the  ed.  1842)  U50. 

policy:  Ellis  on  Ins.  1.  Insurance  against  fire  is  a  contract  to 

An  insurance  against  fire,  is  a  contract  indemnify  the  insured  for  loss  or  damage 

by  which  the  insurer,  in  consideration  of  to   his  property,  occasioned  by  that    ele- 


OF   INSURANCE.  179 

The  person  who  effects  such  an  insurance  must  have  an  interest  in  the 
property  insured,  and  he  cannot  recover  beyond  the  extent  of  his  interest ; 
neither  can  he  assign  his  policy  without  the  consent  of  the  insurers, (2;) 
When  the  building  insured  is  situate  within  tlie  limits  of  the  Metropoli- 
tan Building  Acts,  any  person  interested  may  procure  the  insurance 
money,  in  case  of  fire,  to  be  laid  out  in  repairs  or  re-building. (?/)  A 
covenant  to  insure  any  building  within  such  limits  is  therefore  tanta- 
mount to  a  covenant  to  repair  to  the  extent  of  such  insurance,  and,  if 
entered  into  by  a  lessee  in  his  lease,  will  run  with  the  latid,  so  as  to  be 
binding  on  the  assignee  of  the  lease.(2)  And  *it  is  now  decided  r^-ioni 
that,  according  to  the  true  construction  of  the  act  of  Geo.  III. 
relating  to  this  subject,  the  law  is  the  same  even  if  the  building  be  situ- 
ate beyond  the  above-mentioned  limits. (a)  A  recent  enactment  empow- 
ers a  Court  of  Equity  to  relieve  against  a  forfeiture  for  breach  of  a  cove- 
nant or  condition  to  insure  against  fire,  when  no  loss  or  damage  by  fire 
has  happened,  and  the  breach  has,  in  the  opinion  of  the  court,  been  com- 
mitted throucrh  accident  or  mistake,  or  otherwise  without  fraud  or  gross 
negligence,  and  there  is  an  insurance  on  foot  at  the  time  of  the  applica- 
tion to  the  court  in  conformity  with  the  covenant  to  insure. (6)  But  the 
same  person  is  not  to  be  relieved  more  than  once,  or  where  a  forfeiture 
has  been  already  waived  out  of  court. (c)     It  is  also  provided  that  the 

(z)  Lynch  v.  Dalzell,  4  Bro.  Pari.  Cas.  431  ;  Saddler's  Company  v.  Badcock,  2 
Atk.  554. 

(y)  Stat.  14  Geo.  III.  c.  T8,  s.  83.  This  section  is  not  repealed  by  stat.  18  &  19  Vict. 
c.  122,  s.  109. 

(z)  Vernon  v.  Smith,  5  B.  &  Aid.  1  (E.  C.  L.  R.  vol.  7),  see  Principles  of  the  Law  of 
Real  Property  316,  2d  ed. ;  326,  3d  ed. ;  331,  4th  ed.  ;  342,  oth  ed.  ;  359,  Gth  ed. ;  3G7, 
Tth  ed. ;  383,  8th  ed. 

(a)  See  4  Jur.  N.  S.,  pt.  2,  p.  132:  Simpson  v.  Scottish  Union,  &c.,  V.-C.  W.,  11  W. 
R.  459  ;   1  Hem.  &  Mill.  618;  Re  Barker,  L.  C,  10  Jur.  N.  S.  1085. 

(6)  Stat.  22  &  23  Vict.  c.  35,  s.  1 ;  Page  i>.  Bennett,  2  Giff.  117. 

(c)   Stat.  22  &  23  Vict.  c.  35,  s.  6. 

ment,  during  a  specified  period ;  Flanders  is  sunk  for  the  benefit  of  the  insurer.     In 

on  Fire  Ins.  17.  cases  of  partial  loss,  it  is  usually  stipula- 

Perpetual  insurances  are  sometimes  ef-  ted  in  the  policj^,  that  the  insurance  shall 

fected  on   buildings   against  loss  by  fire,  remain  for  the  difference  only  between  the 

In  this  case  a  premium  is  deposited  with  amount  originally  insured,  and  the  amount 

the  insurer  proportionate  to   the  amount  paid  or  expended  for  the  partial  loss  ;  but 

of  insurance  desired,  and  so  long  as  the  as  to  the  premium  or  deposit  in  this  latter 

deposit  remains  with  the   insurer  or  the  case,   in   some   instances    the  policy  pre- 

peril  insured   against   has   not  happened,  scribes  that  it  shall  be  sunk  for  the  benefit 

the  insurance  continues.     Should  a  total  of  the  insurer,  in  others,  that  only  a  por- 

loss   occur  by  fire,  and  the  sum   insured  lion  of  the  premium  proportionate   to  the 

be  paid,  or  the  premises  rebuilt,  the  policy  loss  shall  be  sunk, 
should  be  surrendered,  and  the  premium 


180 


OF    CnOSES    IN   ACTION. 


person  cntitlctl  to  the  benefit  of  a  covenant  on  the  part  of  the  lessee  or 
niortf'a"or  to  insure  against  fire  shall,  on  loss  or  damage  by  fire  happeit- 
inor,  have  tlie  same  advantage  from  any  then  subsisting  insurance  of  the 
premises,  effected  by  the  lessee  or  mortgagor,  or  by  any  person  claiming 
under  him,  but  not  effected  in  conformity  -with  the  covenant,  as  he  -would 
have  from  an  insurance  effected  in  conformity  with  the  covenant. (f?) 
There  is  a  further  enactment,  -which  will  be  very  beneficial  to  the  pur- 
chasers of  leasehold  property,  namely,  that  -where,  on  a  bo7id  fide  pur- 
chase of  such  property,  the  purchaser  is  furnished  with  a  receipt  for  the 
last  ])avmeiit  of  rent  accrued  due  before  the  completion  of  the  purchase,  and 
an  insurance  is  subsisting  in  conformity  Avith  the  lessee's  covenant  to  in- 
sure, the  purchaser,  shall  not  be  liable  for  any  breach  of  such  covenant, 
r*iftn  committed  at  any  time  *before  the  completion  of  the  purchase, 
of  which  he  had  not  notice  before  such  completion. (c)^ 

The  insurance  of  ships  and  their  cargoes  from  the  perils  of  the  sea  is 
a  matter  belonging  rather  to  mercantile  law  than  to  the  department  of 
conveyancing.'     In  this  kind  of  insurance,  as  well  as  in  the  others,  an 

{d)  Sect.  7. 

(«)  Stat.  22  &  23  Vict.  c.  35,  s.  8.     The  ad  valorem  duty  on  fire  insurances  is  now  re- 
pealed by  Stat.  32  Vict.  c.  14,  s.  12. 


1 A  covenant  made  by  a  lessee  to  repair,  or 
keep  in  repair,  tlie  demised  premises,  or 
to  surrender,  or  leave  them,  in  good  repair, 
amounts  to  a  contract  of  insurance,  and 
obliges  him  to  build  in  case  the  premises 
be  burned  :  Payne  v.  Haine,  16  M.  &  W. 
541  ;  Bullock  v.  Dommdt,  6  Term  Rep. 
650;  Abby  r.  Billups,  35  Miss.  618;  Nave 
V.  Berry,  22  Ala.  382  ;  Mcintosh  v.  Lowen, 
49  Barb.  550.  But  where  the  lease  con- 
tained a  written  clause  providing  that  the 
buildings  are  to  be  kept  in  repair,  and 
maintained  in  good  condition  by  the  lessee, 
and  printed  clauses  providing  that  at  the 
end  of  the  term,  the  lessee  will  quit  and 
deliver  up  the  premises  "in  as  good  order 
and  condition  (reasonable  use  and  wearing 
thereof,  fire  aud  other  unavoidable  casual- 
tics  excepted)  as  the  same  now  are  or  may 
be  put  into"  by  the  lessor,  and  that  the 
lessee  shall  keep  the  buildings  insured 
against  loss  by  fire,  in  a  specified  sum 
payable  to  the  lessor,  it  was  held  that  the 
lessee  was  not  liable  to  repair  injuries 
which  occurred  through  ordinary  wear,  or 


fire,  or  other  unavoidable  casualty  :  Ball 
V.  Wyeth,  8  Allen  (Mass.)  275  ;  and  see 
Warner  v.  Ilitchins,  5  Barb.  666 ;  Howeth 
V.  Anderson,  25  Texas  557. 

Where  the  covenant  was  to  maintain 
buildings,  it  was  held  that  the  lessee  was 
bound  by  it  at  all  times,  and  that  an  action 
might  be  brought  against  him  for  the 
breach  of  that  covenant,  before  the  expi- 
ration of  the  term:  Buck  v.  Pike,  27  Vt. 
529 ;  but  where  the  covenant  is  to  make 
certain  improvements,  the  lessee  has  the 
whole  term  to  comply  therewith  :  Pale- 
thorp  V.  Bergner,  52  Pcnn.  St.  149. 

See  further  on  this  subject  generally  : 
West  V.  West,  7  J.  J.  Marsh.  258 ;  Jacques 
V.  Gould,  4  Cush.  384;  Dean  v.  Jones,  1 
E.  &  E.  484  ;  Kling  v.  Dress,  5  Rob.  (N.  Y.) 
521. 

2  Marine  insurance  is  a  contract,  where- 
by one  party,  for  a  stipulated  sum,  under- 
takes to  indemnify  the  other  against  loss, 
arising  from  certain  perils  or  sea  risks,  to 
which  his  ship,  merchandise,  or  other  in- 
terest, may  be  exposed   during  a  certain 


OF   INSURANCE.  181 

interest  in  the  property  insured  must  generally  belong  to  the  party 
eflfecting  the  insurance,  if  the  ship  be  a  British  vessel,  or  the  goods  be 
laden  on  board  any  such  vessel. (/)  It  is  now  provided  that  whenever  a 
policy  of  insurance  on  any  ship  or  on  any  goods  in  any  ship,  or  on  any 
freight,  has  been  assigned  so  as  to  pass  the  beneficial  interest  in  such 
policy  to  any  person  entitled  to  the  property  thereby  insured,  the  as- 
signee of  such  policy  shall  be  entitled  to  sue  thereon  in  his  own  name ; 
and  the  defendant  in  any  action  shall  be  entitled  to  make  any  defence 
which  he  would  have  been  entitled  to  make  if  the  said  action  had  been 
brought  in  the  name  of  the  person  by  whom  or  for  whose  account  the 
policy  sued  upon  was  effected.f^)  Full  information  on  the  subject  of 
marine  insurance  will  be  found  in  Park  on  Insurance,  Arnould  on 
Marine  Insurance,  Abbott  on  Shipping,  and  in  the  chapter  on  maritime 
insurance  in  the  late  J.  W.  Smith's  admirable  Compendium  of  Mercan- 
tile Law.  Connected  with  maritime  insurance  are  bottomry  and  respon- 
dentia. Bottomry  is  an  agreement  by  which  a  vessel  is  hypothecated 
or  pledged  by  the  owner  for  the  payment,  in  the  event  of  her  voyage 
terminating  successfully,  of  money  advanced  to  him  for  the  necessary 
use  of  the  vessel,  together  with  interest,  which  interest,  in  *con-  r^-ioQ-i 
sideration  of  the  risk  incurred,  is  generally  far  beyond  five  per  "'-^ 

cent.,  formerly  the  legal  rate.(7<)  Respondentia  is  a  somewhat  similar 
contract  with  respect  to  the  cargo,  except  that  the  borrower  only  is  re- 
sponsible in  the  event  of  the  safe  termination  of  the  voyage,  the  lender 
having  no  lien  on  the  goods.  («y 

(/)  Stat.  19  Geo.  II.  c.  37,  s.  1.     The  stamps  on  sea  insurance  are  now  regulated  by 
Stat.  30  Vict.  c.  23,  s.  3  et  seg. 
{g)  Stat.  31  &  32  Vict.  c.  8G,  s.  1. 

(/i)  Simonds  v.  Hodgson,  3  B.  &  Ad.  50  (E.  C.  L.  R.  vol.  23). 
\i)  2  Black.  Com.  457. 

voyage,  or   a    certain  period   of  time  :    1  perils  being  both  defined  by  the   instru- 

Arnould  on  Ins.  2.  ment  of  agreement  aided  by  the  law:    1 

Marine  insurance  is  a  contract,  where-  Pars,  on  Marine  Ins.  &c.,  p.  17. 
by,   for  a  consideration   stipulated  to   be         i  Bottomry  is  a  pledge   of  a  vessel  and 

paid,  by  one  interested  in  a  ship,  freight,  its  freight,  deriving  its  name  from  the  bot- 

or  cargo   subject  to  the  risks  of  marine  tom  or  keel  of  the  ship, 
navigation,  another  undertakes  to  indem-         Respondentia  is  a  pledge  of  goods  laden 

nify  him  against  some  or  all  of  those  risks,  on  board  a  vessel.     Most  modern  bottomry 

during  a  certain  period  or  voyage  :  1  Phill.  bonds,  however,  contain  a  pledge  of  ship, 

on  Ins.  1.  freight,  and   cargo.     The  terms  bottomry 

By  the   contract   of  marine   insurance,  and  respondentia  are,  however,  often  used 

the  insurer  for  a  consideration  which   is  synonymously.     By  the  civil  law  writers, 

called  a  premium,  undertakes  to  indem-  this  contract  is  termed  Contrata  la  ffrosse, 

nify  the  assured  against  loss  on  property  or,  a  la  ffrosse  aveniure,  A^mUicumfccnus  and 

arising  from  perils,  the  property  and  the  Contraciue    trajeotitix   pecunix.     Emerigoa 
16 


182 


OF    CnOSES    IN   ACTION. 


gives  riither  an  illustration  tlian  a  ilctiui- 
tion  of  the  contract.  "The  lender,"  he 
says,  "  lends  to  another  a  certain  sum  of 
money,  upon  the  condition  that,  in  case  of 
the  loss  of  the  eflects  tor  which  that  sum 
has  been  lent,  by  any  peril  of  the  sea  or 
vit  major,  the  lender  shall  have  no  recourse 
except  upon  what  shall  remain  :"  2  Emer. 
385.  Again,  ••  Bottomry  is  neither  a  sale, 
nor  ft  partnership,  nor  a  loan  properly  so 
called,  ntir  an  insurance.  It  is  different 
from  all  the  other  contracts  ;  it  constitutes 
a  particular  species  :"  Id.  389-90.  Accord- 
ing to  Valin,  "Bottomry  is  a  contract  by 
which  the  lender,  in  consideration,  that  he 
will  lose  his  money  if  the  thing  upon  which 
he  makes  the  loan  should  perish  by  acci- 
dent, has  the  right  to  stipulate  an  extraor- 
dinary interest  or  profit,  in  case  the  thing 
shall  arrive  safely  in  port:"  Valin,  Book  3, 
tit.  V.  p.  1-  Pothier's  definition  is  more 
accurate.  "The  contract  of  bottomry," 
he  says,  "  is  a  contract  by  which  one  of 
the  parties,  who  is  the  lender,  lends  to  the 
other,  who  is  the  borrower,  a  certain  sum 
of  money,  upon  the  condition,  that  in  case 
of  the  loss  of  the  effects  for  which  this  sum 
has  been  lent,  occasioned  by  some  peril  of 
the  sea,  or  accident  of  vis  major,  the  lender 
will  not  have  any  recourse  unless  it  is  to 
the  extent  of  what  remains,  and  that  in 
case  of  a  prosperous  arrival,  or  in  case  it 
shall  have  been  prevented  by  the  fault 
of  the  master,  or  of  the  mariners,  the  bor- 
rower shall  be  bound  to  return  to  the  len- 
der the  sum  lent,  with  a  certain  stipulated 
profit,  for  the  price  ot  the  risk  of  the  effects, 
of  which  the  lender  has  charged  himself:'' 
Pothier  Traite  du  Pret.  i  la  grosse  aven- 
ture,  2  1,  p.  1129. 

"  The  condition  of  the  bottomry  loan, 
and  of  the  obligation  of  the  borrower  in- 
cluded in  it,  exists,  when  during  all  the 
time  of  the  risk,  the  effects  upon  which  the 
loan  has  been  made,  have  not  been  taken 
nor  lost,  however  damaged  they  may  have 
been  by  the  accidents  of  t'j'a  major;  and  the 
borrower,  in  consequence  is  bound:'-  Id.  p. 
1133. 

"  If  only  a  part  of  the  said  effects  have 
arrived,  and  the  residue  have  been  taken 
or  lost,  the  obligation  in  this  case,  only 


exists  to  the  extent  of  the  value  of  that 
which  remains, •nd  it  is  dissolved  for  the 
residue:"  Id.  p.  1134. 

It  combines  the  character  of  a  loan  and 
a  maritime  insurance — the  lender  being 
the  insurer  against  maritime  risks,  and  the 
borrower  the  assured  of  his  lender.  The 
double  office  of  lender  and  insurer  gives 
the  latter  a  right  to  demand  marine  interest, 
or/tt'«M«  naulicum,  that  is,  interest  greatly 
beyond  the  ordinary  compensation  for  the 
use  of  money,  notwithstanding  usury  laws, 
as  this  interest  is  a  mixed  compensation 
for  the  use  of  the  money  lent,  and  insur- 
ance against  loss  by  marine  risks,  of  the 
property  pledged  in  bottomry  to  the  extent 
of  the  loan. 

The  origin  of  the  contract  is  lost  in  a  re- 
mote antiquity.  It  existed  before  the  time 
of  Justinian,  and  it  is  treated  of  in  his  Di- 
gest and  Code.  It  was  known  among  the 
Romans,  under  the  titles  of  Nauticum  foenus, 
and  Contractus  traj'cctitisc  pecuniee.  It  was 
doubtless  derived  by  the  Romans  from  the 
Greeks.  A  speech  of  Demosthenes  is  still 
preserved  to  us,  in  which  the  facts  are 
stated  to  be,  that  two  fraudulent  debtors 
endeavored  to  sink  the  ship  on  which  they 
were  bound,  after  having  failed  to  fulfil 
the  promise  to  embark  on  board  her  a 
cargo,  hypothecated  to  the  lender  of  a 
very  considerable  sum  ;  and  what  is  still 
more  surprising,  Plutarch  remarks  of  De- 
mosthenes, that  for  him  to  accept  the  bribe 
of  llarpalus,  was  natural  enough,  as  his 
father  had  lent  money  on  maritime  interest: 
48  Law  .Mag.  252. 

Until  quite  a  recent  period,  almost  all 
the  learning  on  this  subject,  was  to  be 
found  in  the  civil  law  books.  Now,  how- 
ever, bottomry  is  not  looked  upon  with  the 
dislike  which  was  exhibited  towards  it  in 
the  time  of  Demosthenes,  but  on  the  con- 
trary, the  contract  is  favored,  as  it  is  con- 
sidered, that  it  is  for  the  general  advantage 
of  the  shipping  interests  of  the  world,  that 
bottomry  transactions  should  not  be  ren- 
dered too  difficult :  The  Vibelia,  1  Robin- 
son, Jr.  1;  The  Zodiac,  1  Hagg.  Adm.  320; 
The  Reliance,  3  Id.  (36  ;  The  Rubicon,  Id. 
8.  Indeed,  courts  of  admiralty  in  the  gen- 
eral exercise  of  their  jurisdiction,  are  not 


OF    INSURANCE. 


182 


governed  by  the  strict  rules  of  the  common 
law,  but  act  upon  enlarged  principles  of 
equity:  The  Virgin,  8  Peters  538;  The 
Hero,  2  Dod.  142.  Thus,  bottomry  bonds 
may  be  sustained  in  part,  though  they  may 
be  bad  in  part :  Abbott  on  Shipp.  159 ;  The 
Nelson,  1  Hagg.  Adm.  169;  The  Bridge- 
water,  Olcott's  Adm.  35  ;  and  even  material 
mistakes  in  them  may,  it  seems,  be  re- 
formed: The  Zephyr,  3  Mason  341;  for 
these  bonds  are  not  to  be  construed  strictly, 
but  liberally,  so  as  to  carry  into  effect  the 
intention  of  the  parties:  Pope  v.  Nickerson, 
3  Story  465. 

There  are  two  classes  of  bottomry  and 
respondentia  bonds;  those  of  the  one,  are 
made  by  the  owner  of  the  property  pledged, 
while  those  of  the  other,  can  only  be  made 
by  the  master  of  the  ship  bottomed,  or  in 
which  the  goods  are  carried.  The  former 
are  resorted'  to  at  the  option  of  the  bor- 
rower, as  a  means  of  procuring  money  on 
a  ship,  or  for  an  adventure  ;  the  latter  can 
only  be  created  for  the  purpose  of  borrow- 
ing money,  which  cannot  be  otherwise 
obtained,  and  which  is  necessary  to  be 
raised,  in  order  to  repair  or  refit  a  vessel 
which  has  become  unseaworthy:  The  Pack- 
et, 3  Mason  255;  The  Gratitudine,  3  Rob. 
272  ;  and  see  The  Panama,  Olcott  Adm, 
343 ;  they  are  made  by  the  master  of  the 
vessel  virtute  officii,  under  the  authority 
conferred  on  him  by  law,  under  certain 
circumst-ances,  to  pledge  his  ship,  freight, 
and  cargo,  or  any  of  them,  and  as  a  general 
rule,  such  loans  can  only  be  effected  in 
foreign  ports.  A  bottomry  bond  may  be 
given  by  a  substituted  master,  to  the  con- 
signee of  the  vessel  who  had  appointed 
him :  The  Rubicon,  3  Hagg.  9.  Where 
the  ship  and  freight  have  the  same  owner, 
and  are  both  hypothecated,  there  is  no 
equity  which  forbids  the  creditor  from  re- 
sorting to  either  in  the  first  instance  for 
the  payment  of  his  bond :  Welsh  v.  Cabot, 
39  Penn.  St.  342. 

The  essential  requisites  of  a  bottomry  bond. 
There  is  no  particular  form  necessary.  Any 
contract  in  language  setting  forth  the  fun- 
damental properties  of  bottomry,  will  be 
Bufificient  evidence  to  sustain  the  contract. 

We   have   not,"   says    Emerigon,    "  any 


printed  form  of  the  contract  of  bottomry  • 
the  draft  of  it  is  made  in  the  form  which 
the  parties  find  appropriate.    It  is  sufficient 
that  they  express  themselves  without  equi- 
vocation, that  they  insert  the  usual  clauses 
and  that  they   stipulate   nothing  which  is 
contrary  to  the  nature  of  the  contract:"  2 
Emerigon   400.    The  particular  voyage  on 
which    the  vessel   is  bound,  need  not  be 
stated:  The  Jane,  1  Dod.   461.     And  like 
all  other  contracts  as  to  its  form,  it  must 
comply  with  the  law  of  the  place  where  it 
is  entered  into  :  The  Nelson,  I  Hagg.  Ad. 
169.     "  Sometimes    an   instrument  in  the 
form  of  a  bond,  at  others  in  the  form  of  a 
bill  of  sale,  at  others  of  a  different  shape, 
is  made  use    of:"   Abbott    on   Shipp.    158. 
There  must  be  risk  incurred  by  the  lender. 
"Navigation,"   says  Emerigon,  vol.  ii.  39, 
"forms  the   only  object  of  bottomry.     If 
"nothing  has  been  exposed  to  the  perils  of 
the  sea,  the  contract  has  never  been   bot- 
tomry;" see  also  Jennings  v.  The  Ins.  Co. 
of  Penna.,  4  Binn.  244.     But  Ch.  J.  Tilgh- 
man  there   distinguished  the   case   before 
him,  which  was  a  contract  stipulating  for 
more   than    legal   interest,   from   such   an 
agreement,  made    to    secure    a  loan    with 
legal  interest,  and  refused  to   express  an 
opinion  as  to   such    an   agreement.     The 
fact   that    a    bottomry    bond    only    bears 
interest  at  the   ordinary  rate,  is   a  reason 
for  presuming  that  sea  risk  was   not  con- 
templated: The  Emancipation,  1  Robinson, 
Jr.  124;  The  Hero,  2   Dod.    142.     But  al- 
though   there   can    be   no  valid  bottomry 
contract  to  secure  a  loan,  unless  the  lender 
shall  agree  to  incur  sea  peril,  yet  the  risk 
may  be  assumed  for  any  given  voyage,  or 
for  any  definite  time:  Valin4;  The  Draco, 
2  Sumner  157  ;  The  Atlantic,  4  Newb.  Adm. 
514. 

As  a  general  proposition  of  law,  it  is  un- 
doubtedly true,  that  a  deed  extorted  by 
actual  duress,  is  invalid  ;  and  this  [)riuci- 
ple  of  law  would  clearly  extend  to  vitiate 
a  bond  of  bottomry,  compulsorily  obtained 
by  duress  from  the  master,  even  although 
the  advances  were  made  upon  the  promise 
of  a  future  bond,  and  the  bond  itself  was 
taken  as  a  fulfilment  of  that  promise.  But 
it  does  not  follow  that  such  an  instrument, 


182 


OF   CHOSES    IN   ACTION. 


executed  wliilc  the  muster  is  imprisoned, 
though  at  the  suit  of  the  bomi-holder, 
was  executed  under  duress,  and  therefore 
void  :  The  Heart  of  Oak,  1  W.  Rob.  213. 

When  the  bond  is  made  by  a  master 
virlute  ojh'cii,  it  must  ordinanl;/  be  given  in 
a  port  of  a  country  foreign  to  the  owners 
of  the  vessel.  But  this  may  be  a  port 
sought  by  a  vessel  in  distress  as  an  asy- 
lum, called  a  port  of  necessity;  or  it  may 
be  the  port  of  destination  of  the  vessel  : 
Reade  r.  The  Commercial  Ins.  Co.,  3  Johns. 
352  ;  Webb  i'.  Pierce,  Sprague  192.  There 
are,  however,  some  exceptions  to  this  rule, 
as  where  the  master,  though  in  a  domestic 
port,  has  no  means  of  communicating  with 
his  owners  :  La  Ysabel,  1  Dods.  273,  or 
where  the  owners  have  become  insolvent: 
The  Trident,  1  Robinson,  Jr.  29.  In 
short  the  place  where  the  vessel  is,  pro- 
vided she  is  on  a  voyage  and  is  in  distress, 
is  of  no  further  importance,  than  that 
generally  speaking,  unless  the  vessel  is  in 
a  foreign  port,  there  will  be  no  necessity,  and 
hence,  no  right  on  the  part  of  the  master, 
to  raise  money  by  a  pledge  of  the  ship 
and  cargo,  or  of  either.  The  general 
principle,  that  bottomry  bonds  can  alone 
be  given  for  the  furtherance  of  the  voyage 
in  which  the  vessel  is  actually  engaged, 
is  not  affected  by  the  circumstance,  that 
by  the  law  of  the  country  where  she  is  seized, 
the  vessel  may  be  arrested  and  sold,  for 
any  debt  owing  by  the  owner,  to  a  cred- 
itor residing  in  that  country  :  The  Osmanli, 
3  W.  Rob.  198. 

Another  requisite  of  the  contract  when 
made  by  a  master  is,  that  there  must  be 
a  necessity  for  the  loan  on  bottomr3\  If 
the  repairs  and  supplies  are  in  a  just 
sense  necessary,  then  it  is  clear,  that  if 
the  master  has  no  other  means  of  meeting 
the  expenditure,  he  may  take  the  money 
therefor  upon  bottomry  :  The  Ship  Forti- 
tude, 3  Sumner  228  ;  Greely  v.  Smith,  3 
W.  &  M.  236. 

1.  There  must  be  a  necessity  for  the 
supplies  and  repairs,  for  the  safety  and 
security  of  the  vessel,  or  to  enable  her  to 
prosecute  her  voyage :  The  Aurora,  1 
Wheat.  103;  Burke  v.  The  M.  P.  Rich,  1 
Cliff.  C.  C.  308. 

The  necessary   repairs  for  which  a  ves- 


sel may  be  bottomried,  mean  such  as  are 
reasonably  fit  and  proper  for  the  ship 
under  the  circumstances,  and  not  merely 
such  as  are  absolutely  indispensable  for 
the  safety  of  the  ship,  or  accomplishment 
of  the  voyage.  The  money  advanced 
should  at  the  time  appear  to  be  needed  for 
the  supplies  or  repairs,  but  all  that  the  law 
requires  is  an  apparent  necessity.  A  bot- 
tomry bond  may  be  given  to  pay  off  a 
former  bond  ;  and  if  such  former  bond  was 
valid,  the  latter  -will  be  so  likewise  :  The 
Aurora,  1  Wheat.  26.  It  would  seem 
not  to  be  incumbent  upon  a  foreign  mer- 
chant, advancing  money  upon  bottomry 
for  the  repairs  of  a  vessel,  to  calculate  the 
expediency  of  such  repairs  :  The  Vibelia, 
1  W.  Rob.  10. 

A  public  advertisement  for  the  sale  of  a 
bottomry  bond,  by  auction,  to  the  lowest 
bidder,  at  a  foreign  port,  will  not  dis- 
charge a  bond  fide  purchaser,  from  the 
necessity  of  making  reasonable  inquiry  as 
to  the  actual  existence  of"  an  unprovided 
necessity."  Such  "  an  unprovided  neces- 
sity "  is  essential  to  the  validity  of  a 
bottomry  bond,  and  therefore  the  want  of 
it  will  render  a  bond  void,  even  against  a 
bona  fide  vendor  ignorant  of  all  the  cir- 
cumstances:  The  Prince  of  Saxe  Cobourg, 
3  Hagg.  387. 

2.  There  must  be  an  inability  on  the 
part  of  the  master  to  procure  funds  of  the 
owner,  or  funds  on  the  personal  credit  of 
the  owner,  at  the  port  of  distress.  It 
seems  to  be  an  open  question,  whether  the 
bond  would  be  valid  if  the  master  has  the 
requisite  funds,  or  could  procure  them  on 
his  own  credit:  Abb.  on  Ship.  156.  A 
bottomry  bond  by  a  master  is  not  valid, 
unless  it  has  been  given  to  enable  the 
vessel  to  leave  a  port  where  she  is  detained 
either  for  necessary  repairs,  or  for  claims 
upon  her,  the  master  having  there  no 
funds  nor  credit,  nor  means  of  getting 
money  :  Gibbs  v.  The  Texas,  Crabbe  236. 

But  the  necessity  of  the  supplies  and  re- 
pairs being  once  made  out,  it  is  incum- 
bent upon  the  owners,  who  assert  that 
they  could  have  been  obtained  upon  their 
personal  credit,  to  establish  that  fact  by 
competent  proofs,  unless  it  is  apparent 
from  the  circumstances  of  the  case.     It  is 


OF   INSURANCE. 


182 


no  objection  that  the  owner  had  funds  in 
the  hands  of  his  consignees,  at  the  same 
port,  provided  the  master  applied  for  and 
could  not  obtain  them.  The  non-existence 
of  funds,  and  the  inability  to  get  at  them, 
must  be  deemed  precisely  equal  predica- 
ments of  distress.  Nor  is  it  an  objection, 
that  the  supplies  and  repairs  were  in  the 
first  instance  made  upon  the  master's 
credit.  The  lender  may  well  trust  to  the 
credit  of  the  master,  as  auxiliary  to  the  lien, 
which  the  foreign  law  would  give  on  the 
ship,  or  the  general  responsibility  of  the 
owners.  And  the  fact  that  the  master 
ordered  the  supplies  and  repairs  before 
the  bottomry  bond  was  given,  can  have 
no  legal  effect  to  defeat  that  security,  if 
they  were  so  ordered  by  the  master,  upon 
the  faith,  and  with  the  intention,  that  a 
bottomry  bond  should  ultimately  be  given, 
to  secure  the  payment  of  them :  The 
Virgin,  8  Peters  538;  The  Yuba,  4 
Blatch.  C.  .C.  352.  The  bond  may  pledge 
both  the  ship  and  the  personal  responsi- 
bility of  the  captain  :  Kelly  v.  Cushi  :g,  48 
Barb.  269.  A  bottomry  bond  may  be 
valid,  though  the  money  was  not  advanced 
in  one  sum,  nor  at  the  same  time  the  bond 
was  given.  If  advanced  before  the  bond 
was  made,  or  in  separate  sums,  it  is  only 
necessary  that  it  should  have  been  ad- 
vanced on  the  faith  and  understanding 
that  the  bottomry  security  was  to  be  given: 
La  Ysabel,  ]  Dod.  273 ;  The  Virgin,  8  Peters 
538.  Such  a  bond,  to  be  valid,  should  be 
given  for  repairs  or  outfits  of  a  vessel, 
and  not  for  a  pre-existing  debt ;  and  should 
appear  to  be  risked  on  the  vessel,  and  not 
on  the  personal  liability  of  the  owner: 
Greeley  v.  Smith,  3  Wood.  &  M.  236. 
But  small  advances,  originally  made  with- 
out any  express  stipulation  for  a  bond,  but 
followed  by  a  bond  of  bottomry,  may  be 
included  in  the  bond :  The  Trident,  1  W. 
Rob.  34  ;  The  Fair  Haven,  Law  Rep.  1  Adm. 
&  Ecc.  67.  And  though  a  loan  upon  per- 
sonal credit  cannot  be  changed  into 
a  loan  upon  bottomry,  it  is  a  totally  dif- 
ferent thing  from  this,  to  take  a  bottomry 
bond  for  a  loan,  where  the  money  was  at 
first  advanced  on  the  security  of  a  lien,  or 
the  right  of  lien  on  the  ship  :  Tiie  Ship 
Vibelia,   1  Robinson,   Jr.  1.     And   in   as- 


certaining the  original  character  of  the 
loan,  where  the  question  is  personal  credit 
or  not,  the  law  of  the  place  where  the 
advances  have  been  made  may  be  properly 
invoked,  if  that  law  gives  a  lien  for  the 
advances,  because  it  renders  the  contem- 
plation of  bottomry  security  more  probable 
than  it  would  otherwise  be,  by  furnishing 
a  presumption  against  the  contracting  of 
the  loan  on  mere  personal  credit :  La 
Ysabel,  1  Dod.  273  ;  The  Alexander,  Id. 
280  ;  The  Virgin,  8  Peters  538. 

The  lender  is  always  expected  to  prove, 
by  other  eveidence  than  the  bond,  that  the 
money  was  lent,  and  that  the  repairs  were 
made,  and  the  materials  furnished  to  the 
amount  claimed,  and  that  thej'  were  neces- 
sary to  enable  the  vessel  to  perform  her  voy- 
age, or  for  her  safety:  Crawford  «.  The  Wil- 
liam Penn,  3  Wash. C.C. 354.  Necessityfor 
repairs  is  proved,  when  such  circumstances 
of  exigency  are  shown,  as  would  induce 
a  prudent  owner,  if  present,  to  order  them ; 
and  if  the  fact  of  such  necessity  be  left 
unproved,  evidence  is  required  of  due 
inquiry,  and  of  reasonable  grounds  of  belief, 
that  the  necessity  was  real  and  exigent : 
The  Grapeshot,  9  Wall.  U.  S.  130;  but 
it  is  not  necessary  further  to  prove,  that 
the  money  lent  was  actually  employed  in 
repairing  or  refitting  the  vessel  :  Cunard 
V.  The  Atlantic  Ins.  Co  ,  1  Peters  436  ;  The 
Jane,  1  Dod.  461. 

Where  once  the  transaction  is  shown  to 
have  been  clearly  and  indisputably  of  a 
bottomry  character,  that  is,  where  the 
distress  is  admitted  or  established,  the 
want  of  personal  credit  is  beyond  question, 
and  the  bond  in  all  essentials  is  correct ; 
the  strong  presumption  of  the  law,  under 
such  circumstances,  is  in  favor  of  its 
validity;  and  this  is  not  to  be  impugned 
without  clear  and  conclusive  evidence  of 
fraud,  or  unless  it  shall  be  proved  beyond 
all  doubt,  that  although  the  contract  is  in 
form  a  bottomry  transaction,  the  money 
was  in  fact  advanced  on  different  consider- 
ations :  The  Vibelia,  1  Robinson,  Jr.  1. 

And  prima  facie,  and  until  the  contrary 
is  shown,  the  master  is  presumed  to  have 
acted  with  good  faith,  upright  intentions, 
and  reasonable  diligence  :  The  Fortitude, 
3  Sumner  228. 


[*183] 


♦CHAPTER    VII, 

OF   ARBITRATION.^ 


Instead  of  the  ultimate  remedy  of  an  action  at  law  or  suit  in  equity, 
recourse  is  sometimes  had  for  the  settlement  of  disputes  to  the  more  ami- 


'  The  laws  of  all  the  states  contain  pro- 
visions on  the  subject  of  arbitration  and 
reference,  and  in  almost  all  of  them  any 
personal  controversy,  whether  litigated  or 
not,  may  be  referred  under  a  rule  of  court. 
This  is  the  case  in  Alabama,  Florida, 
Georgia,  Kentucky,  Louisiana,  California, 
Michigan,  Mississippi,  New  Jersey,  Ohio, 
Tennessee,  Vermont,  Virginia  and  Penn- 
sylvania ;  and  in  New  Hampshire  the  re- 
ference is  of  the  same  effect  as  if  under  a 
rule  of  court.  In  Maine,  Massachusetts 
and  New  York  any  personal  controversy 
may  be  made  the  subject  of  arbitration. 
The  statutes  of  Delaware,  Iowa  and  Texas 
allow  a  reference  of  any  matter  in  litiga- 
tion ;  and  those  of  Arkansas  authorize  a 
reference,  by  agreement  in  writing,  in 
cases  where  no  suit  is  pending.  In  gen- 
eral, there  is  no  necessity  for  the  choice  of 
an  umpire,  as  the  statutes  either  direct 
the  arbitrators  to  be  of  an  uneven  num- 
ber, or  else  allow  them  to  be  so  chosen ; 
thus,  in  Florida,  Kentucky,  California, 
Massachusetts,  Mississippi,  New  Hamp- 
shire, New  Jersey,  New  York,  Ohio  and 
Vermont,  the  dispute  may  be  referred  to 
one  or  more  persons ;  if  one  only  should 
be  chosen,  he  is  of  course  the  umpire;  but 
it  is  customary  to  choose  an  uneven  num- 
ber at  first,  obviating  the  necessity  of  an 
umpire.  In  Arkansas,  any  number  of 
referees,  not  exceeding  five,  may  be  cho- 
sen ;  while  in  Delaware  the  number  is 
fixed  at  three.  The  laws  of  Texas  and 
Louisiana,  regulating  arbitrations  and 
awards,  prescribe  the  manner  of  choosing 
an  umpire ;  the  former  requiring,  that 
where  one    is  necessarv  to   be  chosen,  on 


account  of  the  difference  of  opinion  of  the 
arbitrators,  and  they  cannot  agree  in  the 
choice,  he  shall  be  appointed  by  the  clerk 
of  the  court ;  and  the  latter  giving  power 
to  the  arbitrators  themselves  to  appoint 
an  umpire,  although  it  also  allows  the 
parties,  at  discretion,  to  fix  upon  their 
umpire  at  the  time  the  other  arbitrators 
are  appointed. 

The  Pennsylvania  sj'stems  of  arbitration 
are  peculiar,  being  in  number  no  less  than 
six,  five  of  which  are  by  agreement  of  the 
parties,  and  the  sixth  at  the  pleasure  of 
either,  and  commonly  called  the  compul- 
sory rule  of  arbitration.  In  the  case  of 
Williams  v.  Craig,  1  Dall.  313,  Chief  Jus- 
tice McKean  gives  a  description  of  four  of 
these  kinds  of  reference  in  the  following 
words  :  "  There  are  four  species  of  awards  : 
First,  those  made  by  mutual  consent,  in 
pursuance  of  arbitration-bonds  entered 
into  out  of  court ;  secondli/,  those  which 
are  made  in  a  cause  depending  in  a  court 
of  law  or  equity,  upon  consent  of  the  par- 
ties to  refer  the  matter  in  variance  (which 
are  awards  at  common  law) ;  thirdlj/,  those 
which  are  made  under  a  rule  of  court,  by 
virtue  of  the  statute  of  9  &  10  Will.  3,  c. 
15,  which  was  calculated  to  remedy  the 
delay  and  circuity  of  action  attendant 
upon  awards  made  merely  in  pursuance  of 
arbitration-bonds,  without  the  interven- 
tion of  a  controlling  power  to  compel  the 
acquiescence  of  the  parties.  These  are 
the  onlj'  awards  in  use  at  this  day  in  Eng- 
land ;  but  the  legislature  of  Pennsylvania, 
in  the  year  1705,  introduced  another  spe- 
cies here,  which  are,  fourthlj/,  those 
awards,  or  reports,  that  are  made  in  pur- 


OF    AKBITRATION. 


183 


cable  expedient  of  arbitration.     And  in  some  transactions,  especially  in 
articles  of  co-partnership   between  traders,  it   is  usual  to  stipulate  that, 


suance  of  the  Act  of  Assembly,  setting 
forth  that  '  when  the  plaintiff  and  defend- 
ant consent  to  a  rule  of  court  for  referring 
the  adjustment  of  their  accounts  to  certain 
persons,  mutually  chosen  by  them  in  open 
court,  the  award,  or  report,  of  such  refer- 
ees being  made  according  to  the  submis- 
sion of  the  parties,  and  approved  by  the 
court,  and  entered  upon  the  record,  or 
roll,  shall  have  the  same  effect  and  be  as 
available  in  law  as  a  verdict  by  twelve 
men  :'  1  State  Laws  48  ;  4  Ann.  c.  36  ;  Act 
of-lTOS,  1  Sm.  Laws  50. 

"  This  act  differs  essentially  from  the 
statute  of  Will.  3,  in  many  respects,  but 
particularly  that  to  render  a  report,  or 
award,  valid  and  effectual,  the  former  re- 
quires that  it  be  approved  by  the  court;  but 
no  such  provision  is  made  by  the  latter, 
and,  therefore,  awards  under  rules  of  court 
are  conclusive  in  England,  unless  some 
corruption,  or  other  misbehavior  in  the 
arbitrators,  is  proved.  The  courts  of 
equity,  indeed,  have  taken  a  wider  ground, 
and  wherever  a  plain  error  appears,  either 
in  matter  of  fact  or  law,  it  seems,  they 
will  make  it  an  object  of  inquiry:  2  Vern. 
705;  1  Vern.  157;  3  Atk.  494.  From 
some  expressions  in  the  authority,  we 
might  presume  that  the  error  must  be  ap- 
parent on  the  award  ;  but  as  the  chancel- 
lor, at  the  same  time,  speaks  generally, 
that  it  must  be  set  forth  in  the  bill  for  re- 
lief, there  is,  at  least,  great  room  to  doubt 
upon  the  subject. 

"  In  Pennsylvania,  however,  since  the 
revolution,  as  the  approbation  of  the 
court  is  made  a  necessary  ingredient  in 
the  confirmation  of  reports,  we  have 
thought  it  our  duty,  from  time  to  time,  to 
inquire  into  the  allegations  against  them, 
before  we  gave  them  our  sanction.  But 
in  doing  this  we  have  always  confined 
ourselves  to  two  points :  First,  whether 
there  is  an  evident  mistake  in  matter  of 
fact ;  or,  seco7idIy,  whether  the  referees 
have  clearly  erred  in  matter  of  law.  If 
either  of  these  is  satisfactorily  proved,  the 


argument  is  surely  as  strong  for  setting  a 
report  aside,  as  where  injustice  has  been 
done  by  the  corruption,  or  other  miscon- 
duct, of  the  referees." 

The  fifth  species  of  award  is  that  created 
by  the  Act  of  the  21st  of  March,  1806  (4 
Sra.  Laws  326),  wherein  it  is  provided, 
"  That  it  shall  be  lawful  for  any  person  or 
persons,  desirous  of  settling  any  dispute 
or  controversy,  by  themselves,  their 
agents  or  attorneys,  to  enter  into  an 
agreement  in  writing  to  refer  such  dispute 
or  controversy  to  certain  persons  to  be  by 
them  mutually  chosen,"  &c.  By  the  3d 
section  of  the  Revised  Act  of  1836,  on  the 
subject  of  voluntary  arbitrations,  a  new 
modification  of  the  voluntary  system  is  in- 
troduced, it  being  enacted  that  '■  It  shall 
be  lawful,  also,  for  the  parties  to  any  suit 
to  consent,  as  aforesaid,  to  a  rule  of  court 
for  referring  all  matters  of  fact  in  contro- 
versy in  such  suit  to  referees  as  aforesaid, 
reserving  all  matters  of  law  arising  there- 
upon for  the  decision  of  the  court,  and 
the  report  of  such  referees,  setting  forth 
the  facts  found  by  them,  shall  have  the 
same  effect  as  a  special  verdict,  and  the 
court  shall  and  may  proceed  thereupon  in 
like  manner  as  upon  a  special  verdict," 
&c.  And  see  Steele  v.  Lineberger,  59 
Penn.  St.  308. 

The  last  species  of  award,  being  the 
compulsory  system,  authorizes  either  party 
to  enter  a  rule  of  reference  and  regulate 
the  proceedings  on  arbitration.  The  pro- 
visions of  this  system  will  be  found  in  the 
Acts  of  20th  March,  1810,  5  Sm.  Laws 
131;  25th  of  February,  1813,  6  Sm.  Laws 
28  ;  28th  of  March,  1820,  Pamph.  L.  172  ; 
and  the  revised  act  on  compulsory  arbi- 
tration, of  the  16th  of  June,  1836.  This 
system  originated  from  the  violent  opposi- 
tion at  one  time  felt  in  Pennsylvania  to 
the  common  law ;  it  is  alluded  to  by  Mr. 
Duponceau  in  his  Treatise  on  Jurisdiction, 
p.  102,  thus:  "In  Pennsylvania  it  was 
for  some  time  believed  that  the  legislature 
would  abolish  the  common  law  altogether. 


183 


OF    CIIOSES    IN    ACTION. 


if  any  dit:pute  shall  arise,  it  sliall  be  referred  to  the  determination  of  two 
indifferent  persons  as  arbitrators,  or  of  their  umpire,  who  is  usually  and 


Violent  pamjihlets  were  published  to  in- 
stipiite  tlu'in  to  that  measure.  The  wiiolc, 
however,  ended  in  a  law  for  determining 
all  suits  by  arbitrators  in  the  first  in- 
stance at  the  will  of  either  partj'."  A  re- 
cent act  of  the  legislature,  passed  May  1, 
1861  (Paraph.  L.  521),  has  repealed  the  act 
of  1836  in  reference  to  compulsory  arbi- 
tration, so  far  as  the  same  relates  to  the 
city  and  county  of  Philadeliihia,  so  that 
this  mode  of  settling  disputes  and  contro- 
versies cannot  now  be  there  resorted  to. 
The  still  more  recent  Acts  of  April  G,  1869, 
January  20,  1870,  and  April  6,  1870,  are 
comparatively  local  in  their  character, 
extending  only  to  a  few  counties  of  Penn- 
sylvania:  Pamph.  L.  1869,  p.  725;  Pamjih. 
L.  1870,  pp.  85,  948. 

By  the  voluntary  system  of  arbitration 
in  Pennsylvania,  any  person  or  persons 
may  be  chosen  as  arbitrators  b}'  the  par- 
ties ;  and  by  the  compulsory  system,  the 
number  of  arbitrators  is  to  be  either  three 
or  five,  and  if  they  cannot  agree,  the  dis- 
cretion of  appointment  is  left  with  the 
prothonotary  of  the  court;  but  the  parties 
may  agree  to  refer  the  dispute  to  one  per- 
son ;  and  the  act  of  1836  contains  precise 
directions  as  to  the  practice  of  appointing 
arbitrators,  or  an  umpire. 

Tlie  fact  that  the  statutes  of  a  state  have 
provided  a  method  of  arbitration  and 
reference,  does  not  abrogate  the  common 
law  system,  which  will  still  remain  in  ex- 
istence unless  expressly  abolished  :  Martin 
V.  Chapman,  1  Ala.  278;  Byrd  v.  Odeur,  9 
Id.  755;  Titus  v.  Scantling,  4  Blackf.  90; 
Tyler  i-.  Dyer,  13  Maine  41  ;  Mooer's  Admr. 
t'.  Allen,  35  Id.  276  ;  Camp  et  al.  v.  Root, 
18  Johns.  22  ;  Waine  v.  Elderkin,  1  Chand- 
ler's (Wis.)  219;  Wells  v.  Lain,  15  Wend. 
99  ;  Valentine  v.  Valentine  et  al.,  2  Barb. 
Ch.  430;  Gray  v.  Wilson,  4  Watts  39; 
Graham  et  al.  v.  Hamilton,  1  Binn.  461  ; 
Graham  v.  Graham,  9  Penn.  St.  254 ;  s.  c. 
12  Penn.  St.  128;  Allen  v.  Chase,  3  Wis. 
249 ;  and  where  an  arbitration  is  had 
under  the  common  law,  an  umpire  may  of 


course  be  chosen,  if  a  necessity  for  one 
should  arise,  as  well  as  in  those  cases 
where  the  statutes  of  the  state  make  pro- 
vision for  the  election  of  an  umpire,  and 
he  will  be  subject  to  the  regulations  of  the 
common  law  on  that  subject,  unless  the 
laws  of  the  state  provide  otherwise  :  Ram- 
sey V.  Edwards,  17  Conn.  309;  Falconer  v. 
Montgomery,  4  Dall.  232 ;  Passraore  v. 
Pettit  ctal..  Id.  271  ;  Crabtree  v.  Green,  8 
Ga.  8  ;  Keans  v.  Rankin,  2  Bibb  88  ;  Tyler 
V.  Webb,  10  B.  Mon.  123 ;  Knowlton  v. 
Horner,  29  Maine  552  ;  Rigden  v.  Martin, 
6  Har.  &  Johns.  403;  McKinstry  v.  Solo- 
mons, 2  Johns.  57;  8.  c.  13  Id.  27;  Van 
Courtlandt  et  al.  v.  Underhill  et  al.,  17  Id. 
405  ;  Butler  v.  The  Mayor,  &c.,  of  New 
York,  1  Hill  (N.  Y.)  489  ;  Boyer  t>.  Aurand, 
2  Watts  74  ;  Graham  v.  Graham,  9  Penn. 
St.  254  ;  s.  c.  12  Id.  128  ;  Sharp  v.  Lipsey, 
2  Bail.  113  ;  Pack  v.  Wakeley  et  al.,  2  Mc- 
Cord  27&;  Shields  v.  Penn,  Overt.  313; 
Richards  v.  Brockenborough's  Admr.,  1 
Rand.  449  ;  Rison  v.  Berry,  4  Id.  275  ;  Bas- 
sett's  Admr.  v.  Cunninghams  Admr.,  9 
Gratt.  684.  This  kind  of  submission  may 
be  revoked  at  any  time  before  the  award  is 
made  :  Martin  v.  Chapman,  1  Ala.  278 ; 
Randal  v.  Chesapeake,  &c.,  Canal  Co.,  1 
Harring.  235  ;  Peter's  Admr.  v.  Craig,  6 
Dana  307;  Allen  v.  Watson,  16  Johns. 
205  ;  Frets  v.  Frets,  1  Cowen  335  ;  Erie  v. 
Tracy,  2  Grant's  Cas.  20  ;  Davis  v.  Max- 
well, 27  Ga.  368  ;  and  it  is  ipso  facto  re- 
voked by  the  death  of  either  party 
Mooer's  Admr.  v.  Allen,  35  Maine  276; 
Ferris  v.  Mann,  2  Zabr.  161  ;  Freeborn  v 
Denman,  3  Halst.  116;  Frets  w.  Frets,  1 
Cowen  335 ;  Tyson  v.  Robinson,  3  Ired. 
333  ;  unless  there  should  be  an  agreement 
to  the  contrary :  Bailey  v.  Stewart,  3  W.  & 
S.  560  ;  but  where  the  reference  is  made  a 
rule  of  court,  the  death  of  one  of  the 
parties  will  not  revoke  it,  if  the  cause  of 
action  survives:  Bacon  v,  Crandon,  15 
Pick.  79  ;  Tyson  v.  Robinson,  3  Ired.  333  ; 
but  see,  contrary  to  the  last.  Power  v . 
Power,  7  Watts  205,  which  decides  that  a 


OF   ARBITRATION. 


183 


very  properly  required  to  be  chosen  by  the  arbitrators  before  they  pro- 
ceed to  take  the  subject  in  question  into  consideration. (a)  And  it  is 
agreed  that  the  award  in  writing  of  the  arbitrators,  or  of  their  umpire  in 
case  of  their  disagreement,  shall  be  binding  and  conclusive  on  all  parties. 

As  the  courts  of  law  and  equity  have  full  jurisdiction  on  all  questions 
arising  out  of  agreements  of  any  kind,  it  follows  that  they  retain  a  juris- 
diction over  matters  which  the  parties  themselves  have  agreed  should  be 

(a)  See  Bates  v.  Cooke,  9  B.  &  C.  407,  408  (E.  C.  L.  R.  vol.  IV). 


submission  even  by  a  rule  of  court,  is,  like 
any  other  naked  authority,  counternianda- 
ble.  An  award,  however,  which  has  been 
accepted  or  carried  into  effect,  bars  all 
further  action:  Kendall  v.  Stokes  et  al.,  3 
How.  (U.  S.)  87;  United  States  v.  Ames, 
1  Wood.  &  Min.  76  ;  Martin  v.  Chapman,  1 
Ala.  278  ;  Gerrish  et  al.  v,  Ayres  et  al.,  3 
Scam.  245  ;  Coleman  v.  "Wade,  2  Seld.  44  ; 
Patton's  Admr.  v.  Baird,  7  Ired.  Eq.  255. 

Awards  must  conform  to  the  sabmission 
or  agreement  by  which  they  are  referred  : 
Daniel  v.  Daniel's  Admr.,  6  Dana  99 ;  An- 
derson V  Farnham  et  al.,  34  Maine  161 ; 
Reeves  v.  Goff,  Penning.  105  ;  Young  v. 
Young,  2  Halst.  Ch.  450  ;  Welty  v.  Lent- 
myer,  4  "Watts  75 ;  Coleman  et  al.  v. 
Lukens,  4  Whart.  347  ;  Okinson  w.  Flickin- 
ger,  1  "W.  &  S.  257  ;  Sharp  v.  Lipsey,  2 
Bail.  113;  Speer  v.  Bidwell,  44  Penn.  St. 
23;  Burchell  v.  Marsh,  17  How.  (U.  S.) 
344 ;  and  if  not  required  by  the  submis- 
sion to  be  in  writing,  may  be  by  parol  : 
Jones  V.  Dewey,  17  N.  H.  596  ;  but  all  the 
arbitrators  must  concur,  unless  the  sub- 
mission provides  otherwise :  Mackey  v. 
Neill,  8  Jones  L.  214;  Bakus'sAp.,  58  Penn. 
St.  186;  and,  where  an  award  is  partly 
good  and  partly  bad,  it  will  be  valid  so  far 
as  it  is  good,  and  void  as  to  the  rest,  ex- 
cept where  the  good  and  bad  are  so  in- 
termingled that  the  one  cannot  be  sepa- 
rated from  the  other,  in  which  case  the 
whole  award  will  be  bad :  Reynolds  v. 
Reynolds,  15  Ala.  398  ;  Galway's  Heirs  v. 
Webb,  Hardin  318;  Dickey  v.  Sleeper,  13 
Mass.  244;  Walker  v.  Walker,  28  Ga.  140; 
Griffin  v.  Hadlej^,  8  Jones  L.  82  ;  and  awards 
must  be  certain  :  Etnier  y.Shope,  43  Penn. 


St.  110;  Stanley  v.  South  wood,  45  Id. 
189;  Pettibone  v.  Perkins,  6  Wis.  616; 
and  final :  Bayne  v.  Morris,  1  Wall.  (U.  S.) 
97 ;  McCracken  v.  Clarke,  31  Penn.  St. 
498;  Owen  v.  Boerum,  23  Barb.  187; 
Smith  V.  Potter,  27  "Vt.  304;  Carter  v. 
Calvert,  3  Md.  Ch.  Dec.  199  ;  and  a  second 
award  is  void :  Bayne  v.  Morris,  1  Wall. 
(U.  S.)  97  ;  as  to  what  is  sufficient  to  set 
an  award  aside,  see  further  :  State,  to  the 
use  of,  &c.,  V.  Williams,  9  Gill  172;  Bean 
V.  Farnam  et  al.,  6  Pick.  269;  Newman  v. 
Labeaume,  9  Miss.  30  ;  Eaton  v.  Eaton,  8 
Ired.  Eq.  102;  Conger  v.  James,  2  Swan 
213;  Webber  v.  Ives,  1  Tyler  441  ;  Ligon 
V.  Ford,  5  Munf.  10;  Taber  v.  Jenny, 
Sprague  315. 

In  the  State  of  New  York,  upon  a  motion 
to  refer  a  cause  then  pending,  the  refer- 
ence may  be  opposed  on  the  ground  that  a 
material  point  of  law  will  arise  :  Lusher 
V.  Walton,  1  Caines  149  ;  Low  v.  Hallett, 
3  Id.  82;  Adams  v.  Bayles,  2  Johns.  374; 
Salisbury  v.  Scott,  6  Id.  329  ;  De  Hart  v. 
Covenhoven,  2  Johns.  Cas.  402 ;  Shaw  v. 
Ayrs,  4  Cowen  52  ;  Anon.,  5  Id.  423. 

As  to  the  time  within  which  an  award  is 
to  be  made,  see  Minton  v.  Moore,  4  Blackf. 
315  ;  Shaw  v.  Pearce,  4  Binn.  485  ;  Abbot 
V.  Pinchin,  1  Dall.  349  ;  White  v.  Puryean, 
10  Yerg.  441 ;  Willard  v.  Bickford,  39  N. 
H.  536;  Keller  v.  Sutrick,  22  Cal.  471. 

An  agreement  to  arbitrate  does  not 
divest  courts  of  their  jurisdiction:  Allcgre 
V.  Insurance  Co.,  6  Har.  &  Johns.  408  ; 
Haggart  v.  Morgan,  1  Seld.  422;  but  see, 
to  the  contrary  :  Monongahela  Navigation 
Co.  V.  Fenlon,  4  W.  &  S.  205  ;  Leonard  r. 
House,  15  Ga.  473. 


183  OF    CIIOSES    IN    ACTION. 

referred  to  arbitration. (7>)  NotAvitlistanding,  therefore,  an  agreement  to 
refer  disputes  to  arbitration,  either  party  may  bring  the  matter  into 
court.(c)  But  the  Common  Law  Procedure  Act,  1854,  now  provides, 
that,  whenever  the  parties  to  any  deed  or  instrument  in  writing  to  be 
r*1fti1  thereafter  executed  shall  agree  to  refer  *their  differences  to 
*-  arbitration,  and  one  of  such  parties  shall  nevertheless  commence 

an  action  at  law  or  suit  in  equity  against  the  others  in  respect  of  the 
matters  so  agreed  to  be  referred,  the  court  may  stay  the  proceedings  on 
such  terms  as  it  may  think  fit,  on  being  satisfied  that  no  sufficient  reason 
exists  why  such  matters  cannot  be  or  ought  not  to  be  referred  to  arbitra- 
tion, and  that  the  defendant  was  at  the  time  of  the  bringing  of  such 
action  or  suit  and  still  is  ready  and  willing  to  concur  in  all  acts  neces- 
sary for  causing  such  matters  to  be  decided  by  arbitration. (tZ)  And  a 
contract  may  be  so  worded  as  to  amount  to  merely  an  agreement  to  pay 
so  much  as  an  arbitrator  may  award,  in  which  case  there  can  be  no  right 
to  sue  until  the  award  has  been  made.(c) 

The  reference  of  disputes  to  arbitration  appears  to  have  been  early 
adopted  by  the  courts  of  law,  with  the  consent  of  the  parties  to  an 
action,  in  cases  where  the  matter  in  dispute  could  be  more  conveniently 
settled  in  this  mode.  A  verdict  was  taken  for  the  plaintiff  by  consent, 
subject  to  the  award  of  an  arbitrator  agreed  upon  by  the  parties,  and  the 
reference  was  made  a  rule  of  court.  This  plan  is  still  continually  adopted. 
The  arbitrators  and  the  parties  to  the  reference  by  this  means  become 
subject  to  the  jurisdiction  of  the  court,  which  has  power  to  set 
aside  any  award  which  may  appear  to  have  been  given  unjustly  or 
through  mistake  of  the  law ;  or  if  the  award  be  valid,  its  performance 
may  be  enforced  under  the  penalty  of  imprisonment  for  contempt 
r:^-|Qr-i  *of  court.  And  by  the  Common  Law  Procedure  Act,  1854,  the. 
court  has  power,  upon  the  application  of  either  party,  to  order 
any  matter  in  dispute,  which  consists  wholly  or  in  part  of  matters  of 
mere  account,  to  be  referred  to  arbitration,  upon  such  terms  as  to  costs 
and  otherwise  as  the  court  may  think  reasonable. (/)     In  order  to  extend 

(b)  Wellington  v.  Mackintosh,  2  Atk.  569. 

(c)  Waters  v.  Taylor,  15  Ves.  10,  18  ;  Mexborongh  v.  Bower,  7  Beav.  127,  132  ;  Hor- 
ton  V.  Sayers,  4  H.  &  N.  643  ;  Cook  v.  Cook,  V.-C.  W.,  15  W.  R.  981. 

{(l)  Stat.  17  &  18  Vict.  c.  125,  s.  11  ;  Hirsch  v.  Im  Thurn,  4  C.  B.  N.  S.  5G9  (E.  C.  L. 
R.  vol.  93).  See  Mason  v.  Haddan,  6  C.  B.  N.  S.  526  ;  Wheatley  v.  Westminster  Brymbo 
Coal  and  Coke  Company,  Limited,  2  Drew.  &  Sm.  347  ;  Cook  v.  Catchpole,  V.-C.  W. 
10  Jur.  N.  S.  1068. 

(«)  Scott  V.  Avery,  5  H.  of  L.  Cases  811  ;  Scott  v.  Corporation  of  Liverpool,  3  De  G. 
&  J.  334 ;  Elliott  v.  Royal  Exchange  Assurance  Company,  Law  Rep.  2  Ex.  237. 

(/)  Stat.  17  &  18  Vict.  c.  125,  ss.  3,  6,  7. 


OF   ARBITRATION.  185 

the  benefits  of  this  mode  of  submission  to  arbitration  to  all  cases  of  con- 
troversies between  merchants  and  traders  or  others  concerning  matters 
of  account  or  trade  or  other  matters,  an  act  of  parliament  was  passed  in 
the  reign  of  William  the  Third,  intituled  "  An  Act  for  determining 
Differences  by  Arbitration. "(^)  This  act  empowers  all  merchants  and 
traders  and  others  desiring  to  end  by  arbitration  any  controversy,  for 
which  there  is  no  other  remedy  but  by  personal  action  or  suit  in  equity, 
t{\  agree  that  their  submission  of  their  suit  to  the  award  or  umpirage  of 
any  person  or  persons  shall  be  made  a  rule  of  any  of  her  majesty's 
courts  of  record  which  the  parties  shall  choose.  And  it  provides,  that, 
in  case  of  disobedience  to  the  arbitration  or  umpirage  to  be  made  pur- 
suant to  such  submission,  the  party  neglecting  or  refusing  to  perform 
and  execute  the  same,  or  any  part  thereof,  shall  be  subject  to  all  the 
penalties  of  contemning  a  rule  of  court  when  he  is  a  suitor  or  defendant 
in  such  court.  And  the  process  to  be  issued  accordingly  shall  not  be 
stopped  or  delayed  in  its  operation  by  any  order,  rule,  command  or  pro- 
cess of  any  other  court,  either  of  law  or  equity,  unless  it  shall  be  made 
to  appear  on  oath  to  such  court  that  the  arbitrators  or  umpire  misbehave 
themselves,  and  that  such  award,  arbitration  or  umpirage  was  procured 
by  corruption  or  other  undue  means.  It  is  also  further  provided,(/i)  that 
any  arbitration  or  umpirage  procured  by  corruption  or  undue  means 
shall  be  *judged  void,  and  be  set  aside  by  any  court  of  law  or  r*i  op-i 
equity,  so  as  complaint  of  such  corruption  or  undue  practice  be 
made  in  the  court  where  the  rule  is  made  for  submission  to  such  arbitra- 
tion or  umpirage  before  the  last  day  of  the  next  term  after  such  arbitra- 
tion or  umpirage  is  made  and  published  to  the  parties.  The  Court  of 
Chancery  is  a  court  of  record  within  the  meaning  of  this  act.(«)  And  it 
is  now  provided,  that  every  agreement  or  submission  to  arbitration  by 
consent,  whether  by  deed  or  instrument  in  writing  not  under  seal,  may 
be  made  a  rule  of  any  one  of  the  superior  courts  of  law  or  equity  at 
Westminster,  on  the  application  of  any  party  thereto,  unless  such  agree- 
ment or  submission  contain  words  purporting  that  the  parties  intend  that 
it  should  not  be  made  a  rule  of  court ;  but  where  it  is  provided  that  it 
shall  be  made  a  rule  of  one  of  such  courts  in  particular,  it  may  be  made 
a  rule  of  that  court  only.(,/)  A  parol  submission  cannot  be  made  a  rule 
of  court,  oven  though  made  in  pursuance  of  an  agreement  to  refer  con- 
tained in  a  deed.(/c) 

(ff)  Stat   9  &  10  Will.  III.  c.  1.5.  (h)  Sect.  2. 

[i)  Heming  v.  Swinnerton,  2  Phil.  79. 

(y)  Stat.    17   &   18   Vict.   c.    125,  s.  17;  Re  Newton  and  Hetherington,  19  C.  B.  N.  S. 
342  (E.  C.  L.  R.  vol.  115) ;  Parkes  v.  Smith,  15  Q.  B.  297  (E.  C.  L.  R.  vol.  69). 
{k)  Ex  parte  Glaysher,  3  H.  &  C.  442. 


186  OF  cnosES  in  action. 

Previously  to  a  recent  statute  citlier  party  might  have  revoked  his 
sulmiission,  and  thus  determined  the  authority  of  the  arbitrators;  and 
this  may  still  be  done,  if  the  submission  relate  to  criminal  matters,  which 
are  not  within  the  statutc.(/)  But  it  is  now  enacted,(?H)  that  the  power 
and  authority  of  any  arbitrator  or  umpire,  appointed  by  or  in  pursuance 
of  any  rule  of  court  or  judge's  order  or  order  of  nisi  prius  in  any  action, 
or  by  or  in  pursuance  of  any  submission  to  reference  containing  an 
agreement  that  such  submission  shall  be  made  a  *rule  of  any  of 
•-  ^  her  majesty's  courts  of  record,  shall  not  be  revocable  by  any 
party  to  such  reference  without  the  leave  of  the  court  by  which  such  rule 
or  order  shall  be  made,  or  which  shall  be  mentioned  in  such  submission, 
or  by  leave  of  a  judge. (w)  And  the  arbitrator  or  umpire  is  empowered 
and  required  to  proceed  with  the  reference  notwithstanding  any  such 
revocation,  and  to  make  such  award  although  the  person  making  such 
revocation  shall  not  afterwards  attend  the  reference.  The  court,  or  any 
judge,  is  also  empowered  under  any  such  reference,  by  rule  or  order,  to 
command  the  attendance  and  examination  of  witnesses,  or  the  production 
of  any  document.(o)  And  by  the  act  to  amend  the  law  of  evidence  it  is 
now  provided,  that  every  arbitrator  or  other  person,  having  by  law  or  by^ 
consent  of  parties  authority  to  hear,  receive  and  examine  evidence,  may 
administer  an  oath  to  all  such  witnesses  as  are  legally  called  before  them 
respectively.(/?) 

The  Common  Law  Procedure  Act,  1854,  provides,  that  if  reference  is 
authorized  to  be  made  to  a  single  arbitrator,  and  all  the  parties  do  not, 
after  differences  have  arisen,  concur  in  the  appointment  of  an  arbitrator  ; 
or  if  any  appointed  arbitrator  refuse  or  become  incapable  to  act,  or  die, 
and  the  terms  of  the  document  authorizing  the  reference  do  not  show 
that  it  was  intended  that  such  vacancy  should  not  be  supplied,  and  the 
parties  do  not  concur  in  appointing  a  new  one;  then  any  party  may 
serve  the  remaining  parties  with  a  written  notice  to  appoint  an  arbitra- 
tor ;  and  if  within  seven  clear  days  after  such  notice  shall  have  been 
served  no  arbitrator  be  appointed,  it  shall  be  lawful  for  any  judge  of  any 
of  the  superior  courts  of  law  or  equity  at  Westminster,  upon  summons 
r*1881  *^  ^®  taken  out  by  the  party  *having  served  such  notice,  to  ap- 
'-         -^    point  an  arbitrator,  who  shall  have  the  same  power  to  act  in  the 

{I)  2  Wms.  Saund.  133  e,  n.  (d)  ■  Rex  v.  BardcU,  5  Ad.  &  E.  619  (E,  C.  L.  R.  vol. 
31) ;  8.  c.  1  Nev.  &  P.  74. 

[m)  Stat.  3  &  4  Will.  IV.  c.  42,  s.  39. 

(n)  See  Scott  v.  Van  Sandau,  1  Q.  B.  102  (E.  C.  L.  R.  vol.  41). 

(o)  Stat.  3  &  4  Will.  IV.  c.  42,  s.  40.  {p)  Stat.  14  &  15  Vict.  c.  99,  s.  16. 


OF   ARBITRATION.  188 

reference  and  to  make  an  award  as  if  lie  had  been  appointed  bj  consent 
of  all  parties. (^) 

The  authority  of  arbitrators  is  liable  to  be  determined  not  only  by  a 
revocation  of  the  submission,  but  also  by  the  death  of  either  of  the  par- 
ties previously  to  the  making  of  the  award. (r)  In  order  to  obviate  this 
inconvenience,  it  is  now  usual  to  insert  in  the  order  or  rule  of  court,  by 
which  reference  is  made  to  arbitration,  a  provision  that  the  death  of 
either  of  the  parties  shall  not  operate  as  a  revocation  of  the  authority  of 
the  arbitrators,  but  that  the  award  shall  be  delivered  to  the  executors  or 
administrators  of  the  parties,  or  either  of  them,  in  case  of  their  or  his 
decease.(a)  And  the  same  stipulation  may  be  effectually  made  in  a  sub- 
mission to  arbitration  by  private  agreement.(^)  The  bankruptcy  of 
either  party  is  not  a  determination  of  a  submission  to  arbitration. (w) 

When  the  reference  is  made  to  two  arbitrators,  one  appointed  by  each 
party,  it  is  now  provided, (v)  that  either  party  may,  in  case  of  the  death, 
refusal  to  act  or  incapacity  of  any  arbitrator  appointed  by  him,  substi- 
tute a  new  arbitrator,  unless  the  document  authorizing  the  reference 
show  that  it  was  intended  that  a  vacancy  should  not  be  supplied.  And 
if  on  such  a  reference  one  party  fail  to  appoint  an  arbitrator,  either 
originally  or  by  way  of  substitution  as  aforesaid,  for  seven  clear  days 
*after  the  other  party  shall  have  appointed  an  arbitrator,  and  r*-ioQ-i 
shall  have  served  the  party  so  failing  to  appoint  with  notice  in 
writing  to  make  the  appointment,  the  party  who  has  appointed  an  arbi- 
trator may  appoint  such  arbitrator  to  act  as  sole  arbitrator  in  the  refer- 
ence ;  and  an  award  made  by  him  shall  be  binding  on  both  parties  as  if 
the  appointment  had  been  by  consent ;  provided,  however,  that  the  court 
or  a  judge  may  revoke  such  appointment  on  such  terms  as  shall  seem 
just. 

When  no  time  is  limited  for  the  making  of  the  award  it  must  be  made 
within  a  reasonable  time  •,{x)  but  if  a  given  time  be  limited,  the  award 
must  be  made  within  that  time,  unless  the  time  for  making  it  be  en- 

(q)  Stat.  17  &  18  Vict.  c.  125,  s.  12. 

(r)  Cooper  v.  Johnson,  2  B.  &  Aid.  394;  Brooke  v.  Mitchell,  6  M.  &  W.  473. 

(«)  Tyler  v.  Jones,  3  B.  &  C.  144  (E.  C.  L.  R.  vol.  10) ;  Prior  v.  Hembrow,  8  M.  &  W. 
873  ;  2  Wms.  Saund.  133  d,  n.  (d). 

(t)  Macdougall  v.  Robertson,  2  You.  &  Jer.  11 ;  s.  c.  4  Bing.  435  (E.  C.  L.  R.  vol.  13)  ; 
1  M.  &  P.  147. 

(m)  Hemsworth  v.  Bryan,  1  C.  B.  131  (E.  C.  L.  R.  vol.  50). 

{v)  Stat.  17  &  18  Vict.  c.  125.  s.  13.  (z)  Macdougall  v.  Robertson,  ubi  supra. 


189  OF    CIIOSES    IN    ACTION. 

large(l.(y)  Ami  if  the  award  is  required  to  be  made  and  ready  to  be 
delivered  to  the  parties  by  a  certain  day,  it  will  be  considered  as  r«ady  to 
be  delivered  if  it  be  niadc,(z)  unless  the  arbitrators  should  fail  to  deliver 
it  to  either  of  the  parties  on  request  made  for  that  purpose  on  the  last 
day.(a)  The  submission  to  arbitration  frequently  contains  a  power  for 
the  arbitrators  or  umpire  to  enlarge  the  time  for  making  the  award  ;  and 
in  this  case  the  time  may  be  enlarged  from  time  to  timo(6)  by  such  arbi- 
trators or  umpire,(tf)  provided  the  enlargement  be  made  on  or  before  the 
expiration  of  the  time  originally  limited  for  making  the  award.(c?)  And 
if  the  submission  be  made  a  rule  of  court,  then,  whether  the  arbitrators 
or  umpire  have  power  to  enlarge  the  time  or  not,(<')  the  <!ourt,  or  a 
r*1001  i^'^n^  thereof,  has  power  to  *enlarge  the  time.(/)  And  should 
no  enlargement  be  formally  made,  yet  the  parties  may,  by  con- 
tinuing their  attendance  on  the  reference,  or  by  recognizing  the  pro- 
ceedings under  it,  virtually  empower  the  arbitrators  or  umpire  to  make 
a  valid  award  subsequently  to  the  time  originally  limited. (</)  And  the 
Common  Law  Procedure  Act,  1854,  now  provides,  that  the  arbitrator 
acting  under  any  such  document  or  compul^^ory  order  of  reference,  as 
mentioned  in  the  act,  shall  make  his  award  under  his  hand,  and  (unless 
such  document  or  order  respectively  shall  contain  a  different  limit  of 
time)  within  three  months  after  he  shall  have  been  appointed  and  shall 
have  entered  on  the  reference,  or  shall  have  been  called  upon  to  act  by 
a  notice  in  writing  from  any  party;  but  the  parties  may,  by  consent  in 
writing,  enlarge  the  term  for  making  the  award.  And  the  superior 
court  of  which  such  -submission,  document  or  order  is  or  may  be  made  a 
rule  or  order,  or  any  judge  thereof,  may  for  good  cause  truly  stated  in 
the  rule  or  ordei*  for  enlargement  from  time  to  time  enlarge  the  term 
for  making  the  award  ;  and  if  no'period  be  stated  for  the  enlargement  in 
such  consent  or  order  for  enlargement,  it  shall  be  deemed  to  be  an  en- 
largement for  one  month. (7<)  The  word  "month"  in  an  act  of  parlia- 
ment now  means  a  calendar  month. (i) 

(y)  1  Wms.  Saund.  327,  a  n.  (3).  (z)  Bradsey  v.  Cljston,  Cro.  Car.  54L 

(o)  Brooke  v.  Mitchell,  6  M.  &  W.  473. 

(i)  Payne  v.  Deakle,  1  Taunt.  .509;  Barrett  v.  Parry,  4  TauiU.  658. 

(c)  See  Dimsdale  v.  Robertson,  2  Jones  &  Lat.  58. 

{d)  See  Reid  v.  Fryatt,  1  M.  &  Sehv.  1  ;  Mason  v.  Wallis,  10  B.  &  C.  L07  (E.  C.  f^  R. 
vol.21). 

(e)  Barbery  v  Newnhani,  7  M.  &  W.  378;  Leslie  v.  Richardson,  6  C.  B.  378  (E.  C.  L. 
R.  vol.  60). 

(/)  Stat.  3  &  4  Will.  IV  c.  42,  s.  39  ;  Re  Warner  and  Powell's  Arbitration,  V.-C.  S., 
Law  Rep.  3  Eq.  261. 

(g)  Rex  V.  Hill,  7  Price  636.  («)  Slat.  17  &  18  Vict.  c.  125,  s.  15. 

(t)  Stat.  13  &  14  Vict.  c.  21,  s.  4. 


OF   ARBITRATION.  190 

In  proceeding  in  the  business  of  the  arbitration,  the  arbitrators  are 
bound  to  re(|uire  the  attendance  of  the  parties,  for  which  purpose  notice 
of  the  meeting  of  the  arbitrators  should  be  given  to  them.(y)  But  if 
either  party  neglect  to  attend  either  in  person  or  by  attorney,  after  due 
notice,  the  arbitrators  may  proceed  without  *him.(A;)  In  taking  r*-|q-|-| 
the  evidence  the  arbitrators  are  at  liberty  to  proceed  in  any  way 
they  please,  if  the  parties  have  due  notice  of  their  proceedings,  and  do 
not  object  before  the  award  is  made.(^)  But  each  must  use  his  own 
judgment  ;(m)  and  in  order  to  obviate  any  objection,  they  ought  to  pro- 
ceed in  the  admission  of  evidence  according  to  the  ordinary  rules  of 
law,(w)  The  award  should  be  signed  by  the  arbitrators  in  each  other's 
presence.(o)  and  when  made  it  must  be  both  certain  and  final.  Thus  if 
the  award  be  that  one  party  enter  into  a  bond  with  the  other  for  his 
quiet  enjoyment  of  certain  lands ;  this  award  is  void  for  uncertainty ; 
for  it  does  not  appear  in  what  sum  the  bond  should  he.{p)  "With  regard 
to  certaiiity,  however,  the  rule  of  law  is  id  certum  est  quod  certum  reddi 
potest,  and  therefore  an  award  that  one  of  the  parties  should  pay  the 
costs  of  an  action  is  good  without  fixing  the  amount  of  the  costs,  for 
that  may  be  ascertained  by  the  taxing  officer.(^)  On  the  question  of 
finality  many  cases  have  arisen.  If  the  arbitrators  be  empoivered  to 
decide  all  matters  in  diiference  between  the  parties,  the  award  will  not 
necetfsarily  be  wanting  in  finality  for  not  deciding  on  all  such  matters, 
unless  it  appear  to  have  been  required  that  all  such  matters  should  be 
determined  by  the  award.(r)  If  the  award  reserve  to  the  arbitrators,(s) 
or  to  give  to  any  other  person, (^)  or  to  one  of  the  parties,(tt)  any  further 
*authority  or  discretion  in  the  matter,  it  will  be  bad  for  want  P292I 
of  finality,  And  if  the  award  be  that  any  stranger  to  the  refer- 
ence should  do  an  act.  or  that  money  should  be  paid  to,  or  any  other  act 

{j)  Anon.,  1  Salk.  71. 

{k)  Harcourt  v.  Ramsbottom,  IJac.  &  Walk.  512;  Scott  v.  Van  Sandau,  6  Q.  B.  237 
(E.  C.  L.  R.  vol.  51). 

{I)  Ridout  V.  Pye,  1  Bos.  &  P.  91. 

(m)  Whitmore  v.  Smith,  5  H.  &  N.  824. 

(n)  Attorncy-Genecal  v.  Davison,  McCle.  &  Yo.  160. 

(0)  Stalworth  v.  Inns,  13  M.  &  W.  466;  Wade  v.  Dowling,  Q.  B.  18  Jur.  728; 
2  E.  &  B.  44  .(E.  C.  L.  R.  vol.  75) ;  Eads  v.  Williame,  4  De  <G.,  M.  &  G.  674,  688. 

[p)  Samon's  Case,  5  Rep.  77  b. 

[q)  Cargey  v.  Aitcheson,  2  B.  &  C.  L70  (E.  C.  L.  R.  vol.  9),;  s.  c.  3  D,  &  R.  433  ; 
2  Wms.  Saund.  293  b,  n.  [a). 

[r]  Wrightson  v.  Byvi^ater,  3  M.  &  W.  199 ;   1  Wms.  Saund.  32  a,  n.  (a). 

(s)  .Manser  v.  Heaver,  3  B.  &  Ad.  295  (E.  C.  L.  R.  vol.  23). 

\t)  Tomlin  v.  Mayor  of  Fordwich,  5  Ad.  &  E.  147  (E.  C.  L.  R.  vol.  31). 

(u)  Glover  v.  Barrie,  1  Salk.  7.1. 


192  OF   CHOSES    IN    ACTION. 

done  in  favor  of,  a  stranger,  unless  for  the  benefit  of  the  parties,(a:)  such 
award  will  be  void.(;/)  An  award,  however,  may  be  partly  good  and 
partly  bad,  provided  the  bad  part  is  independent  of  and  can  be  separated 
from  that  which  is  good.(-e)  But  if,  by  reason  of  the  invalidity  of  part 
of  the  award,  one  of  the  parties  cannot  have  the  advantage  intended  for 
him  as  a  recompense  for  that  which  he  is  to  do,  according  to  that  part  of 
the  award  which  would  otherwise  be  valid,  the  whole  will  be  void. (a)  If 
it  should  appear  on  the  face  of  the  award  that  the  arbitrators,  intending 
to  decide  a  point  of  law,  have  fallen  into  an  obvious  mistake  of  the  law, 
the  award  will  be  invalid. (i)  But  where  subjects  involving  questions 
both  of  law  and  fact  are  referred  to  arbitration,  the  arbitrators  may  make 
an  award  according  to  what  they  believe  to  be  the  justice  of  the  case, 
irrespective  of  the  law  on  any  particular  point. (c)  And  it  is  now  pro- 
vided, that  it  shall  be  lawful  for  the  arbitrator,  upon  any  compulsory 
reference  under  the  Common  Law  Procedure  Act,  1854,  or  upon  any 
reference  by  consent  of  parties,  where  the  submission  is  or  may  be 
made  a  rule  or  order  of  any  of  the  superior  courts  of  law  or  equity  at 
Westminster,  if  he  shall  think  fit,  and  if  it  is  not  provided  to  the  con- 
trary, to  state  his  award  as  to  the  whole  or  any  part  thereof  in  the  form 
r*i  no-|  of  a  special  case  for  the  *opinion  of  the  court ;  and  when  an 
action  is  referred,  judgment,  if  so  ordered,  may  be  entered 
according  to  the  opinion  of  the  court. ((^) 

When  the  submission  to  arbitration  is  not  made  the  rule  of  any  other 
court, (e)  the  Court  of  Chancery,  according  to  the  ordinary  principles  of 
equity,  has  power  to  set  aside  the  award  for  corruption  or  other  miscon- 
duct on  the  part  of  the  arbitrators,  or  if  they  should  be  mistaken  in  a 
plain  point  of  law  or  fact.(/)  If  the  submission  be  made  a  rule  of  court 
under  the  above-mentioned  statute  of  Will.  III.,(^)  the  court  of  which  it 
is  made  a  rule  has  power  to  set  aside  the  award,  not  only  on  the  grounds 
of  corruption  or  undue  practice  mentioned  in  the  act,  but  also  for  mis- 

(z)  Wood  f.  Adcock,  7  Ex.  Rep.  468. 

(y)  Cooke  v.  Whorwood,  2  Saund.  337  ;  Adam  v.  Statham,  2  Lev.  235 ;  Fisher  v. 
Pimbley,  11  East  188. 

(z)  Fox  V.  Smith,  2  Wils.  267  ;  Aitcheson  v.  Cargej-,  2  Bing.  199  (E.  C.  L.  R.  vol.  9). 

(a)  2  Wms.  Saund    293  b,  n.  (1). 

(b)  Ridout  V.  Pain,  3  Atk.  494;  Richardson  v.  Nourse,  3  B.  &  Aid.  237  (E.  C.  L.  R. 
vol.  5). 

(c)  Re  Badger,  2  B.  &  Aid.  691 ;  Young  v.  Walker,  9  Ves.  364  ;  Hodgkinson  v.  Fernie, 
3  C.  B.  N.  S.  189  (E.  C.  L.  R.  Vol.  91). 

(d)  Stat.  17  &  18  Vict.  c.  125,  g.  5.  (e)  Nichols  v.  Roe,  3  Myl.  &  K.  431. 
(/)   Ridout  V.  Pain,  3  Atk.  494.                         (^)  Stat.  9  &  10  Will.  III.  c.  15. 


OF   ARBITRATION.  193 

takes  in  point  of  law  ;(^)  and  no  other  court  has  a  right  to  entertain  any 
application  for  this  purpose. (z)  The  application  to  set  aside  the  award 
must,  however,  be  made  within  the  time  limited  by  the  act.(^)  But 
although  the  time  limited  by  that  statute  may  have  expired,  yet  if  there 
be  any  defect  apparent  on  the  face  of  the  award,  the  court  will  not 
assist  in  carrying  it  into  effect  by  granting  an  attachment  for  its  non- 
performance. (/)  If  the  submission  to  arbitration  be  made  by  rule  or 
order  of  the  court  in  any  cause  independently  of  the  statute,  the  court 
still  retains  its  ancient  jurisdiction  of  setting  aside  the  award  on  account 
either  of  the  misconduct  of  the  arbitrators,  or  of  their  mistake  in  point 
of  law.(m)  In  analogy,  however,  *to  the  practice  under  the  r*2941 
statute  of  Will.  III.,  the  court  in  ordinary  cases  requires  appli- 
cation for  setting  aside  the  award  to  be  made  within  the  time  limited  by 
that  statute  ;(w)  but  upon  sufficient  grounds  it  will  grant  such  an  appli- 
cation, though  made  after  the  expiration  of  that  time.(o)  All  applica- 
tions, however,  to  set  aside  any  award  made  on  a  compulsory  reference 
under  the  Common  Law  Procedure  Act,  1854,  must  be  Avithin  the  first 
seven  days  of  the  term  next  following  the  publication  of  the  award  to  the 
parties,  whether  made  in  vacation  or  term  ;  and  if  no  such  application 
is  made,  or  if  no  rule  is  granted  thereon,  or  if  any  rule  granted 
thereon  is  afterwards  discharged,  the  award  is  final. (|j)  The  court  or  a 
judge  has  also  power  to  remit  the  matters  referred  to  arbitration,  or  any 
of  them,  to  the  reconsideration  of  the  arbitrator,  upon  such  terms  as  to 
costs  and  otherwise  as  to  such  court  or  judge  may  seem  proper.(5') 

It  is  usual  to  provide  for  the  appointment  of  an  umpire  in  case  the 
parties  should  disagree.  But  the  Common  Law  Procedure  Act,  1854, 
now  provides,(r)  that  when  the  reference  is  to  two  arbitrators,  and  the 
terms  of  the  document  authorizing  it  do  not  show  that  it  was  intended 
that  there  should  not  be  an  umpire,  or  provide  otherwise  for  the  appoint- 
ment of  an  umpire,  the  two  arbitrators  may  appoint  an  umpire  at  any 
time  within  the  period  during  which  they  have  power  to  make  an  award, 
unless  they  be  called  upon  to  make  the  appointment  sooner,  by  notice 
under  the   following   provisions.      And   if,  where  the   parties   or  two 

(A)  Zachary  v.  Shepherd,  2  Term  Rep.  781  ;  Lowndes  v.  Lowndes,  1  East  276,  over- 
ruling Anderson  «;.  Coxeter,  1  Stra.  301  ;  see  1  Wms.  Saund.  327  d,  n.  (s). 

(t)  Stat.  9  &  10  Will.  III.  c.  15,  s.  2  ;  Nichols  v.  Roe,  3  Mjl.  &  K.  431. 

(k)  Lowndes  i>.  Lowndes,  1  East  276  ;  ante,  p.  185. 

(Z)  Pedley  v.  Goddard,  7  Term  Rep.  73.  (m)  Lucas  v.  Wilsoq,  2  Burr.  701. 

(«)  Macarthur  v.  Campbell,  5  B.  &  Ad.  518  (E.  C.  L.  R.  vol.  27)  ;  Smith  v.  Wliit- 
more,  1  Hem.  &  Mill.  576,  affirmed  10  Jur.  N.  S.  1190. 

(o)  Rawsthorn  v.  Arnold,  6  B.  &  C.  629  (E.  C.  L.  R.  vol.  13)  ;  s.  c.  9  D.  &  R.  556. 

(j»)  Stat.  17  &  18  Vict.  c.  125,  s.  9.  {q)  Ibid.  s.  8.  (r)  Ibid.  s.  14. 

11 


104  OF   CnOSES   IN   ACTION. 

arbitrators  arc  at  liberty  to  appoint  an  umpire  or  third  arbitrator,  such 
r*lQ'-l  *P^^'fies  or  arbitrators  do  not  appoint  an  umpire  or  third  arbi- 
^  ^  trator,  or  if  any  appointed  umpire  or  third  arbitrator  refuse  to 
act,  or  become  incapable  of  acting,  or  die,  and  the  terms  of  the  document 
authorizing  the  reference  do  not  show  that  it  was  intended  that  such  a 
vacancy  should  not  be  supplied,  and  the  parties  or  arbitrators  respect- 
ively do  not  appoint  a  new  one,  then  any  party  may  serve  the  remain- 
ing parties,  or  the  arbitrators  as  the  case  may  be,  with  a  written  notice 
to  appoint  an  umpire  or  third  arbitrator  ;  and,  if  within  seven  clear  days 
after  such  notice  shall  have  been  served  no  umpire  or  third  arbitrator  be 
appointed,  it  shall  be  lawful  for  any  judge  of  any  of  the  superior  courts 
of  law  or  equity  at  Westminster,  upon  summons  to  be  taken  out  by  the 
party  having  served  such  notice,  to  appoint  an  umpire  or  third  arbitra- 
tor, who  shall  have  the  same  power  to  act  in  the  reference  and  make  an 
award  as  if  he  had  been  appointed  by  consent  of  all  parties.(s) 

If  an  umpire  be  appointed,  his  authority  to  make  an  award  commences 
from  the  time  of  the  disagreement  of  the  arbitrators, (^)  unless  some  other 
period  be  expressly  fixed ;  and  if,  after  the  disagreement  of  the  arbitrators, 
he  make  an  award  before  the  expiration  of  the  time  given  to  the  arbitrators 
to  make  their  award,  such  award  will  nevertheless  be  valid. (w)  And  it  is 
now  provided  that  if  the  arbitrators  shall  have  allowed  their  time,  or  their 
extended  time,  to  expire  without  making  an  award,  or  shall  have  delivered 
to  any  party,  or  to  the  umpire,  a  notice  in  writing  stating  that  they  cannot 
agree,  the  umpire  may  enter  on  the  reference  in  lieu  of  the  arbitrators. (a;) 
r*1Qn  ^^®  umpire  must  be  chosen  by  the  *arbitrators  in  the  exercise  of 
their  judgment  and  at  the  same  time,(y)  and  must  not  be  deter- 
mined by  \ot,{z)  unless  all  the  parties  to  the  reference  consent  to  his  ap- 
pointment by  such  means. (a)  In  order  to  enable  him  to  form  a  proper  de- 
cision, he  ought  to  hear  the  whole  evidence  over  again,(6)  unless  the  parties 
should  be  satisfied  with  his  deciding  on  the  statement  of  the  arbitrators. (c) 
And  the  whole  matter  in  difference  must  be  submitted  to  his  decision,  and 
not  some  particular  points  only  on  which  the  arbitrators  may  disagree.(c?) 

(»)  Stat.  17  &  18  Vict.  c.  125,  s.  12  ;  sec  Re  Lord,  1  Kay  &  Johns.  90' ;  Collins  v.  Col- 
lins, 26  Beav.  306. 

(<)  Smailes  v.  Wright,  3  M.  &  Selw.  559;  Sprigens  v.  Nash,  5  M.  &  Selw.  193. 

(«)  Sprigens  v.  Nash,  ubi  sup.  (x)  Stat.  17  &  18  Vict.  c.  125,  s.  15. 

(y)  Re  Lord,  Q.  B.  1  Jur.  N.  S.  893 ;  5  E.  &  B.  404  (E.  C.  L.  R.  vol.  85). 

(2)  In  Re  Cassell,  9  B.  &  C.  G24  (E.  C.  L.  R.  vol.  17)  ;  Ford  v.  Jones,  3  B.  &  Ad.  248 
(E.  C.  L.  R.  vol.  23) ;  European,  &c.  Shipping  Company  v.  Crosskey,  8  C.  B.  N.  S.  397 
(E.  C.  L.  R.  vol.  98).     See,  however.  Re  Hopper,  Law  Rep.  2  Q.  B.  367  ;  8  B.  &  S.  100. 

(a)  Re  Jamieson,  4  Ad.  &  E.  945  (E.  C.  L.  R.  vol.  31). 

(6)  Re  Salkeld,  12  Ad.  &  E.  767  (E.  C.  L.  R.  vol.  40)  ;  Re  Hawley,  2  De  G.  &  S.  33. 

(c)  Hall  V.  Lawrence,  4  Term  Rep.  589.  (rf)  Tollit  v.  Saunders,  9  Price  612. 


OF   ARBITRATION. 


196 


An  award  for  the  payment  of  money  creates  a  debt  from  one  party  to 
the  other,  for  which  an  action  may  be  brought  in  any  court  of  law,(e) 
and  which  will  be  sufficient  to  support  a  petition  for  adjudication  of 
bankruptcy. (/)  But  when  the  award  is  made  a  rule  of  court,  its  per- 
formance may,  as  we  have  seen,(^)  be  enforced  by  attachment.  And 
where  the  reference  is  made  by  order  of  the  Court  of  Chancery,(7i)  or 
where  the  award  requires  any  act  to  be  done  which  cannot  be  enforced 
by  an  action  at  law,(«)  equity  will  decree  a  specific  performance.  And 
it  is  now  provided  that  when  any  award  directs  possession  of  any  lands 
or  tenements  to  be  delivered  to  any  party,  the  court,  of  which  the  docu- 
ment authorizing  the  reference  is  or  is  *made  a  rule  or  order,  r*-j  oy-i 
may  order  any  party  to  the  reference  who  shall  be  in  possession 
of  such  lands  or  tenements,  or  any  person  in  possession  of  the  same, 
claiming  under  or  put  in  possession  by  him  since  the  making  of  the  docu- 
ment authorizing  the  reference,  to  deliver  possession  of  the  same  to  the 
party  entitled  thereto  pursuant  to  the  award ;  and  such  rule  or  order  to 
deliver  possession  shall  have  the  eifect  of  a  judgment  in  ejectment  against 
every  such  party  or  person  named  in  it,  and  execution  may  issue,  and  pos- 
session shall  be  delivered  by  the  sheriff  as  on  a  judgment  in  ejectment.(^) 

The  award  of  arbitrators  or  of  an  umpire,  though  indented  and  under 
hand  and  seal,  is  not  a  deed  unless  delivered  as  such.(?)  It  is  now  sub- 
ject to  stamp  duty  according  to  the  table  in  the  note.(m) 

(e)  2  Wms.  Saund.  62  a,  n.  (5).  (/)  Ex  parte  Lingard,  1  Atk.  241. 
(ff)  Ante,  p.  184. 

(h)  MarquisofOrmondv.  Kynnersley,  2Sim.  &Stu.  15;  Wood  jj.  Taunton,  llBeav.  449. 

(f)  Hall  V.  Hardy,  3  P.  Wms.  190.  {k)  Stat.  17  &  18  Vict.  c.  125,  s.  16. 
(Z)  Brown  v.  Vawser,  4  East  584. 
(m)  Stat.  28  &  29  Vict.  c.  96,  s.  3,  where  the  amount  or 

value  of  the  matter  in  dispute  shall  not  exceed  £5 
And  where  it  shall  exceed  £5  and  not  exceed  £10 


10 

20 
30 
40 
50 
100 
200 
500 
750 


20 

30 

40 

50 

100 

200 

500 

750 

1000 


£    s. 

d. 

0    0 

3 

0    0 

6 

0     1 

0 

0     1 

6 

0     2 

0 

0     2 

6 

0    5 

0 

0  10 

0 

0  15 

0 

1     0 

0 

1     5 

0 

And  where  it  shall  exceed  £1000,  and  also  in  all 
other  cases  not  above  provided  for 115 


01 


1  Awards  are  not  made  liable  to  stamp  duty  by  the  Internal  Revenue  Law  of  the  United 
States. 


[*i98]  'TART  III. 

OF  INCORPOREAL  PERSONAL  PROPERTY. 


CHAPTER    L 

OF   PERSONAL   ANNUITIES,  STOCKS   AND   SHARES. 

In  addition  to  goods  and  chattels  in  possession,  which  have  always 
been  personal  property,  and  to  debts  which  have  long  since  been  con- 
sidered so,  there  exists  in  modern  times  several  species  of  incorporeal 
personal  property,  to  which  we  now  propose  to  direct  our  attention. 
These  species  of  property  are  certainly  not  clioses  in  possession,  neither 
yet  are  they  like  debts  strictly  chases  in  action,  though  often  classed  as 
such.  In  analogy,  therefore,  to  the  well-known  division  of  real  estate 
into  corporeal  and  incorporeal,  we  have  ventured  to  place  these  kinds  of 
property  together  into  a  class  to  be  denominated  incorporeal  persojial 
•property.  A  debt  no  doubt  is  also  incorporeal,  but  it  is  still  well  charac- 
terized by  its  ancient  name  of  a  cliose  in  action. 

The  first  kind  of  incorporeal  personal  property  which  we  shall  men- 
tion is  a  personal  annuity.^  This  kind  of  property  is  not  indeed  of  so 
modern  an  origin  as  some  of  those  which  we  shall  hereafter  mention.  It 
consists  of  an  annual  payment,  not  charged  on  real  estate ;  but  it  may 
nevertheless  ^be  limited  to  the  heirs,  or  the  heirs  of  the  body  of  the 
grantee.     In  former  times  it  was  doubted  whether  an  annuity  was  not  a 

1  As  a  part  of  the  law  of  this  country,  pies  relating  to  life  insurance,  which  em- 

this  subject  has  become  of  far  more  practi-  brace  most,  if  not  all,  of  those  applicable 

cal   importance  than   formerly,   from   the  to  personal  annuities, 
gradual  development  of  the  legal  princi- 


OF    PERSONAL   ANNUITIES,    STOCKS   AND    SHARES.  198 

mere  chose  in  action,  and  therefore  incapable  of  assignment  ;(a)  but 
*tliis  objection  has  long  been  overruled.  When  limited  to  the  r*-|nn-| 
heirs  of  the  grantee  it  will,  on  his  intestacy,  descend,  like  real 
estate,  to  his  heir ;  but  it  is  still  personal  property,(6)  and  will  pass  by 
his  will  under  a  bequest  of  all  his  personal  estate.((?)  When  given  to  the 
grantee  and  the  heirs  of  his  body,  the  grantee  does  not  acquire  an  estate 
tail ;  for  this  kind  of  inheritance  is  not  a  tciiement  within  the  meaning  of 
the  statute  Dc  Donis  Conditionalihus.{d)  The  grantee  has  merely  a  fee 
simple  conditional  on  his  having  issue,  such  as  a  grantee  of  lands  would 
have  had  under  a  similar  grant  prior  to  the  statute  De  Donis,{e)  or  as  a 
copyholder  would  now  take  in  manors  where  there  is  no  custom  to  en- 
tail.(/)  When  the  grantee  has  issue,  he  may  therefore  alien  the  annuity 
in  fee  simple  by  a  mere  assignment ;  but  should  he  die  without  issue  the 
annuity  will  fail.  A  personal  annuity  given  to  a  man  for  ever  will  de- 
volve on  the  executor,  and  not  on  the  heir  of  the  grantee.(^)^ 

The  next  kind  of  incorporeal  personal  property  to  be  considered  is 
stock  in  the  public  funds,  or  bank  annuities.  Previously  to  the  Revolu-- 
tion  in  1688  there  was  no  funded  debt  properly  so  called  ;  although 
King  Charles  I.  and  King  Charles  II.  both  found  occasion  to  raise 
money  by  the  grant  of  annuities  in  fee  simple  chargeable  on  particular 
branches  of  the  revenue.  These  annuities,  not  being  payable  out  of  real 
estate,  appear  to  have  been  the  first  instances  of  personal  annuities  lim- 
ited to  the  grantees  and  their  heirs,  and  they  *gave  occasion  to  r^QAA-i 
those  lawsuits  by  which  the  legal  nature  and  incidents  of  per- 
sonal annuities  have  been  determined  ;  although  some  mention  of  such  an- 
nuities is  certainly  to  be  found  in  the  old  books. (A)  Soon  after  the  Revolu- 

(ffl)  Co.  Litt.  144  b,  n.  (1). 

(b)  Earl  of  Stafford  v.  Buckley,  3  Ves.  sen.  171 ;  Radbura  v.  Jervis,  3  Beav.  450,  461. 

(c)  Aubin  v.  Daly,  4  B.  &  Aid.  59  (E.  C.  L.  R.  vol.  6). 

(d)  Turner  v.  Turner,  2  Amb.  116,  782  ;  Earl  of  Stafford  v.  Buckley,  ubi  sup. 

(e)  See  Principles  of  the  Law  of  Real  Property  30,  36,  2d  ed. ;  32,  38,  3d  &  4th  eds.; 
35,  41,  5th,  6th,  7th  &  8th  eds. 

(/)  Ibid.  286,  2d  ed. ;  295,  3d  ed. ;  299,  4th  ed. ;  310,  5th  ed. ;  327,  6th  ed. ;  334,  7th 
ed.;  349,  8th  ed. 

(ff)  Taylor  v.  Martindale,  12  Sim.  158. 
(h)  Co.  Litt.  144  b,  Fitz.  N.  B.  152  a. 

1  Where  an  annuity  is  given  by  will,  and  281  ;  Wiggin  v.  Swett,  6  Mete.  194  ;  Eyre 

there  is  no  direction  as  to  the  time  when  v.  Golding,  5  Binn.  474 ;  Hilj'ard's  Est.,  5 

it  shall  commence,  it  commences  at  the  W.  &  S.  30  ;  Santee  v.  Santee,  64  Penn.  St. 

testator's  death  :   Craig  v.  Craig,  3  Barb.  474  ;  Cooke  v.  Meeker,  36  N.  Y.  15. 
Ch.    76;    Hall    v.    Hall,   2    McCord's     Ch. 


200  OF  INCORrOREAL  PERSONAL  PROPERTY. 

tion,  however,  a  portion  of  the  public  debt  was  funded,  or  transferred  into 
perpetual  annuities,  payable,  by  way  of  interest,  on  the  capital  advanced, 
which  capital  was  to  be  repaid  by  the  government  in  the  manner  agreed 
on.  And  from  that  time  to  the  present,  the  funded  debt  of  the  country 
has,  by  several  acts  of  parliament,  been  greatly  increased.  Stock  in  the 
funds,  therefore,  is  merely  a  right  to  receive  certain  annuities,  by  half- 
yearly  dividends,  as  they  become  duc,{i)  subject  to  the  right  of  govern- 
ment to  redeem  such  annuities  on  payment  of  a  stipulated  sum,  which 
sum  is  the  nominal  value  of  the  stock.  Thus,  lOOZ.  <£3  per  cent.  Con- 
solidated Bank  Annuities  is  a  right  to  receive  SI  per  annum  for  ever, 
subject  to  the  right  of  government  to  redeem  this  annuity  on  payment  of 
100/.  sterling.  The  actual  value  of  100?.  <£3  per  cent.  Consolidated 
Bank  Annuities  (or  Consols  as  they  are  shortly  termed)  of  course  de- 
pends on  the  state  of  the  stock  market,  being  generally  lower,  though  it 
has  been  higher,  than  the  nominal  price,  which  is  called  par. 

The  public  funds  are  composed  of  several  separate  stocks,  of  which, 
however,  by  far  the  largest  and  most  important  are  the  consols.  In  this 
fund  alone  the  Court  of  Chancery  formerly  invested  all  the  money  com- 
mitted to  its  care  belonging  to  the  suitors  in  that  court ;  and,  as  it  is  a 
rule  of  equity,  that  whatever  the  Court  would  certainly  order  to  be  done 
may  be  done  without  applying  to  the  Court,  every  trustee  and  executor 
r*9011  "^^as  justified  *in  investing  in  consols  any  money  which  he  might 
have  held  in  trust,  without  any  express  direction  for  that  pur- 
pose.(^)  But  should  he  have  invested  trust  money  upon  any  other 
security,  Avithout  express  authority  so  to  do,  he  would  have  been  answer- 
able to  his  cestuis  que  trust  for  the  amount  of  the  money  so  invested, 
should  the  security  have  failed ;  and  it  seems  also,  that  the  cestui  que 
trust  had  an  option  either  to  claim  the  money,  or  to  have  so  much  stock 
as  the  money  improperly  invested  would  have  purchased  at  the  time  when 
the  improper  investment  was  made.(Z)  But  when  the  trustee  was  author- 
ized by  the  terms  of  his  trust  to  invest  either  in  the  funds  or  on  real 
securities,  it  was  decided,  after  much  conflict  of  opinion,  that  the  cestui 
que  trust  had  no  option  to  charge  the  defaulting  trustee  with  any  larger 


(i)  Wildman  v.  Wildman,  7  Ves.  174,  177  ;  Rawlings  v.  Jennings,  13  Ves.  38,  45. 
Dividend  warrants  may  now  be  sent  by  post,  stat.  32  &  33  Vict.  c.  104. 

[k)  Howe  V.  Lord  Dartmouth,  7  Ves.  150;  Holland  v.  Hughes,  16  Ves.  114;  Tebbs 
V.  Carpenter,  1  Mad.  306  ;  Norbury  v.  Norbury,  4  Mad.  191. 

(I)  Forrest  v.  Elwes,  4  Ves.  497  ;  Pride  v.  Fooks,  2  Beav.  430  ;  Robinson  v.  Robin- 
son, Lords  Justices,  1  De  G.,  M.  &  G.  247. 


OF   PERSONAL   ANNUITIES,    STOCKS   AND   SHARES.  201 

sum  than  the  amount  of  the  money  lost,  with  interest  at  four  per  cent. 
For  had  the  trustee  chosen,  as  he  might,  to  invest  on  real  security,  the 
cestui  que  trust  would  huve  gained  nothing  by  the  subsequent  rise  in  the 
funds. (w)  Recent  enactments  have,  however,  now  largely  extended  the 
investments  in  which  trust  funds  may  be  placed.(w)^ 

The  legal  nature  and  incidents  of  stock  in  the  public  funds  have  been 
fixed  by  the  various  acts  of  parliament  by  which  these  funds  have  been 
created.  These  statutes  are  far  too  numerous  to  be  here  mentioned;  but 
their  provisions  are  generally  similar.  By  one  of  the  earliest  of  these 
statutes,(o)  it  is  provided,  that  all  persons  who  *sha.ll  be  entitled  r*2021 
to  any  of  the  annuities  thereby  created,  and  all  persons  lawfully 
claiming  under  them,  shall  be  possessed  thereof  as  of  a  personal  estate, 
and  the  same  shall  not  he  descendible  to  the  heir.  And  the  same  rule 
holds  with  respect  to  all  the  public  funds  which  now  exist. 

The  transfer  of  stock  in  the  public  funds  is  effected  only  by  the  signa- 
ture of  the  books  at  the  Bank  of  England  in  the  manner  prescribed  by 
act  of  parliament ;  and  this  transfer  may  be  effected  either  in  person  or 
by  attorney  duly  appointed  for  the  purpose  by  writing,  under  hand  and 
seal,  attested  by  two  or  more  credible  witnesses. (^)  The  legal  title  to 
stock  belongs  to  the  person  in  whose  name  it  is  standing  in  the  Bank 
books ;  and  the  Bank  refuses  to  recognize  trusts,  or  to  keep  more  than 
one  account  for  the  same  person ;  neither  will  it  allow  of  the  transfer  of 
any  stock  into  the  names  of  more  than  four  persons.  Formerly  the 
right  to  stock  always  carried  the  right  to  the  current  half-year's  divi- 
dends, and  the  transfer  books  were  closed  for  some  days  prior  to  the  days 
of  payment  of  the  dividends.  But  a  day  for  closing  the  books  is  now 
fixed  in  the  month  preceding  that  in  which  the  dividends  are  payable, 
and  the  person  whose  name  then  appears  inscribed  in  the  books  as  pro- 
prietor is,  as  between  him  and  the  transferee,  entitled  to  the  current 
half-year's  dividend ;  and  after  that  day  the  person  to  whom  any  transfer 

(m)  Robinson  v.  Robinson,  ubi  sup.,  overruling  Watts  v.  Girdlestone,  6  Beav.  188  ; 
Ames  V.  Parkinson,  7  Beav.  379,  and  Ouseley  v.  Anstruther,  10  Beav.  456. 
(n)  Seejuoi^,  the  chapter  on  "Settlements." 
(o)  Stat.  1  Geo.  I.  st.  2,  c.  19,  s.  9. 
{p)  Stat.  1  Geo.  I.  st.  2,  c.  19,  s.  11,  and  subsequent  acts. 


1  As  a  general  rule,  the  courts  having  vestment  of  trust  funds,  in  the  debt  of  the 
jurisdiction,  on  application  made  to  them  United  States,  or  of  some  State  ;  in  some 
for  that  purpose,  would  authorize  the  in-     municipal  loan,  or  on  real  security. 


202 


OF   INCORPOREAL    PERSONAL   PROPERTY. 


is  mailc  is  not  entitled  to  the  current  tlivi(lencl.(^)  When  stock  is  standing 
in  the  name  of  a  trustee,  the  beneficial  owner  may  transfer  his  equitable 
interest  in  any  manner  he  pleases.  As  the  claim  of  the  beneficial  owner 
is  equitable  only,  there  will  be  no  occasion  to  give  to  the  transferee  a 
power  of  attorney  to  sue  in  the  name  of  the  transferor  ;(r)  and  the  trans- 
feree, on  'living  notice  of  *the  transfer  to  the  trustee,  Avill  be 
L  -'^'^J  entitled  to  a  legal  transfer  of  the  stock  into  his  own  name  in  the 
books  at  the  Bank.  A  recent  act  of  parliament  contains  provisions  for 
the  conversion  of  stock,  transferable  only  at  the  Bank,  into  stock  cer- 
tificates payable  to  bearer,  and  transferable  accordingly  from  hand  to 
hand.(8) 

As  the  constant  fluctuations  of  the  value  of  the  funds  were  long  since 
found  to  present  a  great  temptation  to  gambling  on  the  chance  of  their 
rise  or  f\ill,  an  act  was  passed  in  the  reign  of  Geo.  II.{t)  for  the  purpose 
of  suppressing  such  transactions.  This  act  was  introduced  into  parlia- 
ment by  Sir  John  Barnard,  whose  name  it  bears,  and  it  was  intituled 
"  An  Act  to  prevent  the  infamous  Practice  of  Stockjobbing."^     It  con- 


{g)  Stat.  24  Vict.  c.  3,  s.  1. 
(s)  Stat.  26  Vict.  c.  28. 


(?•)  See  ante,  p.  6. 

{()  Stat.  7  Geo.  II.  c. 


1  A  provision  similar  to  that  referred  to 
in  the  text,  -was  formerly  the  law  of  New 
York,  whereby  it  was  declared  that  all 
contracts,  written  or  verbal,  for  the  sale  or 
transfer  of  stocks,  are  void,  unless  the 
party  contracting  to  sell,  be  at  the  time  in 
the  actual  possession  of  the  evidence  of 
the  debt  or  interest,  or  otherwise  entitled 
in  his  own  right,  or  has  due  authority  to 
sell  the  same. 

Under  this  statute  it  was  held,  that 
where,  at  the  time  of  the  purchase  of 
stock,  the  persons  with  whom  the  con- 
tract was  made,  had  no  stock  standing  in 
their  names,  upon  the  books  of  the  corpo- 
ration that  had  issued  the  stock,  and 
there  was  no  other  evidence  to  prove  that 
they  were  the  owners  of  the  stock  con- 
tracted to  be  sold,  the  would-be  pur- 
chasers could  not  maintain  an  action 
against  them,  the  transaction  being  void: 
Ward  V.  Van  Duser,  2  Hall  1*;2.  And  see, 
also.  Gram  v.  Stebbins  et  al.,  6  Paige  Ch. 
124. 

In  Massachusetts,  upon  an   interpreta- 


tion of  this  statute,  it  has  been  decided 
that,  although  a  person  contracting  for 
the  sale  and  transfer  of  stock,  be  in  pos- 
session of  the  certificate  or  other  evidence 
of  the  title  to  such  stock,  as  required  by 
statute,  at  the  time  of  the  contract,  yet  if 
he  is  nevertheless  then  already  under  a 
liability  or  obligation  for  the  sale  and 
transfer  of  an  equal  or  greater  number  of 
shares  of  the  same  stock,  the  contract  is 
absolutely  void :  Stebbins  et  al.  v.  Leo- 
Avolf,  3  Cush.  137  ;  but  that  a  contract  for 
the  sale  of  railroad  stock,  by  one  who  has 
previously  pledged  it,  and  of  which  the 
pawnee  holds  the  certificate,  but  which 
the  pawnor  is  authorized  by  the  pawnee 
to  sell  whenever  he  has  an  opportunity,  is 
not  within  the  New  York  statute  concern- 
ing stock-jobbing  :  Thompson  v.  Alger,  12 
Mete.  428. 

But  this  law  has  since  been  repealed ; 
see  N.  Y.  Rev.  Stats.  1859,  vol.  ii.  p.  980 i 
Washburn  v.  Franklin,  28  Barb.  27. 

See  also  ante,  p.  92,  note. 


OF   PERSONAL   ANNUITIES,    STOCKS   AND    SHARES.  203 

tained  several  provisions  directed  against  the  practice  of  fictitious  sales 
of  stock  for  a  future  time,  where  the  seller  had  not  the  stock  he  sold, 
neither  intended  to  procure  it,  and  the  buyer  had  no  intention  to  pur- 
chase the  amount  he  contracted  for;  but  the  only  object  of  the  parties 
was  that,  should  the  stock  rise,  the  vendor  should  pay  the  buyer  the 
difference  occasioned  by  the  increase  in  price,  and  should  it  fall,  the 
buyer  should  pay  the  vendor  the  difference  occasioned  by  the  decrease. (m) 
But  this  act,  having  been  found  to  interfere  with  legitimate  transactions, 
has  lately  been  repealed.(x) 

*It  seems  that  stock  is  not  goods,  wares  or  merchandise  r*204"| 
within  the  17th  section  of  the  Statute  of  Frauds,(?/)  so  that  it 
does  not  require  a  written  memorandum  for  a  contract  for  its  sale,  if  the 
value  exceeds  ten  pounds  and  the  buyer  does  not  accept  and  receive  any 
part,  nor  give  something  in  earnest  to  bind  the  bargain  or  in  part  pay- 
ment. (2)  Contract  notes  for  the  sale  or  purchase  of  Government  or 
other  public  stocks  or  shares,  to  the  amount  or  value  of  five  pounds  or 
upwards,  are  now  liable  to  a  stamp  duty  of  one  penny. (a)^ 

By  a  modern  act  of  parliament,  the  Court  of  Chancery  is  empowered 
to  order  the  dividends  of  stock  belonging  to  infants  to  be  applied  for 
their  maintenance.(6)     By  another  act  the  Lord  Chancellor  is  empow- 

(w)  See  Child  v.  Morley,  8  Term  Rep.  610  ;  Heckscher  v.  Gregory,  4  East  607,  614. 
The  buyer  who  is  interested  in  the  rise  of  the  funds  is  called,  in  the  language  of  the 
Stock  Exchange,  a  bull,  the  seller  is  a  bear,  but  either  party,  if  unable  to  pay  his  dif- 
ferences, becomes  a  lame  duck.  A  stockjobber,  properly  so  called,  is  a  person  who 
supplies  the  public,  through  the  medium  of  the  brokers,  with  money  or  stock  to  the 
exact  amount  they  may  require,  making  a  profit  only  of  l-8th  per  cent,  on  each  trans- 
action;  a  course  of  business  altogether  different  from  the  "infamous"  practices 
usually  called  stockjobbing  by  the  public. 

(x)  Stat.  23  Vict.  c.  28. 

(y)  Stat.  29  Car.  2,  c.  3.     See  ante,  p.  40. 

(z)  See  Numes  v.  Scipio,  1  Com.  356  ;  Pickering  v.  Appleby,  1  Com.  354  ;  2  P.Wms. 
308  ;  Pawle  v.  Gunn,  4  Bing.  N.  C.  445  (E.  C.  L.  R.  vol.  33)  ;  Humble  v.  Mitchell,  11 
Ad.  &  E.  205  (E.  C.  L.  R.  vol.  39) ;  Knight  v.  Barber,  16  M.  &  W.  66. 

(a)  Stat.  23  &  24  Vict.  c.  HI. 

(6j  Stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  65,  s.  32. 

1  By  the  Internal  Revenue  Act,  a  bro-  sales  or  contracts  for  the  sale  of  stocks, 

ker's  note  or  memorandum  of  sale  is,  liable  bonds,   &c.,  made  by  brokers,   banks   or 

to  a  stamp  duty  of  ten  cents.     And  by  the  bankers.     Sects.   99  &  170  of  the  Act  of 

same  Act,  as  amended  by  the  Act  of  July  June  30,  1864,  as  amended  by  the  Act  of 

13,  1866,  a  stamp  duty  at  the  rate  of  one  July  13,  1866,  2  Brightly's  U.  S.  Dig.,  pp. 

cent   for   every  one    hundred   dollars    or  357,  379,  sects.  279,  365. 
fractional  part  thereof,  is  to  be  paid  on  all 


204  OF   INCORPOREAL   PERSONAL    PROPERTY. 

ered  to  appoint  a  person  to   transfer  stock  and  receive  and  pay  over 
dividends  standing  in  the  name  of  or  vested  in  any  lunatic,  idiot  or  per- 
son of  unsound  mind  beneficially  entitled  thereto,  or   standing  in  the 
name  of  or  vested  in  the  committee  of  a  lunatic  who  may  have  died  in- 
testate, or  himself  become  lunatic,  or  may  be  out  of  the  jurisdictionof  or 
not  amenable  to  the  process  of  the  Court  of  Chancery,  or  if  it  be  uncer- 
tain whether  such  committee  be  living  or  dead,  or  if  he  should  neglect  or 
refuse  to  transfer  such  stock  and  to  receive  and  pay  over  the  dividends 
thereof.(c)     And  the  Lord  Chancellor  is  also   empowered  to  appoint  a 
person  to  transfer  stock  standing  in  the  name  of  or  vested  in  any  lunatic 
residing'  out  of  England  ;  and  also  to  receive  and  pay  over  the  dividends 
thereof  to  the  curator  of  such  lunatic  or  otherwise,  *a3  the  Lord 
L  "  ^-'    Chancellor  shall  think  fit.(cZ)     By  another  recent  act  it  is  pro- 
vided, that  when  stock  shall  be  standing  in  the  name  of  any  infant  or 
person  of  unsound  mind  jointly  Avith  any  person  not  under  any  legal 
disability,  such  person  may  alone  give  a  power  of  attorney  to  receive  the 
dividends.(e)     And  generally,  the  land  or  stock  of  any  lunatic,  in  pos- 
session,  reversion  or  expectancy,  may  be  sold  or  mortgaged  for  the 
payment  of  his  debts,  or  for  his  maintenance   and  otherwise  for  his 
benefit.  (/) 

When  any  person  has  an  interest  in  stock  standing  in  the  name  of 
another  he  is  enabled  to  restrain  the  transfer  of  such  stock,  or,  as  it  is 
said,  to  put  a  sto])  upon  it,  by  means  of  a  writ  of  distringas,  to  be  served 
upon  the  Bank  of  England.  This  writ  appears  to  be  in  strictness  a  pro- 
ceeding in  a  suit  supposed  to  have  been  commenced  by  the  party  obtain- 
ing it  against  the  Bank  and  the  legal  owner  of  the  stock ;  but  in  practice 
a  suit  is  not  commenced,  unless  the  right  to  stop  the  stock  be  disputed. (^) 
This  writ  formerly  issued  only  out  of  the  equity  side  of  the  Court  of 
Exchequer ;  but  when  the  equitable  jurisdiction  of  that  court  was  trans- 
ferred to  the  Court  of  Chancery,  it  was  provided  that  a  writ  of  distringas, 
in  a  prescribed  form,  should  issue  out  of  the  latter  court,  the  force  and 
effect  of  which,  and  the  practice  relating  to  the  same,  should  be  such  as 
was  previously  in  force  in  the  Court  of  Exchequer.(/t)  The  writ  com- 
mands the  sheriff  to  distrain  the  Bank  by  their  lands  and  chattels,  so 
that  they  appear  in  court  to  answer  a  bill  of  complaint  lately  ex- 
hibited against  them  and  other  defendants  by  the  person  obtaining  the 

(c)  Stat.  IG  &  11  Vict.  c.  70,  s.  140. 

(d)  Sect.  141.  (e)  Stat.  8  &  9  Vict.  c.  97,  s.  3. 
(/)  Stat.  16  &  17  Vict.  c.  70,  s.  116  ;  25  &  26  Vict.  c.  86,  ss.  12-14. 

Iff)  See  Wilkinson  on  the  Funds  235-252  ;  Re  Cross,  1  Drew.  &  Sm.  580. 
(A)  Stat.  5  Vict.  c.  5,  8.  5. 


OF   PERSONAL   ANNUITIES,   STOCKS   AND   SHARES.  205 

writ.  The  object  of  the  *writ  is  stated  in  a  notice,  which  is  r*9Ar>-] 
served  along  with  it,  to  be  for  the  purpose  of  restraining  any 
transfer  of  the  stock  in  question  until  the  order  of  the  court  be  obtained. 
An  appearance  is  accordingly  entered  by  the  Bank,  and  the  transfer  of 
the  stock  is  thus  delayed.  When  the  distringas  is  required  to  be  removed, 
an  order  of  the  court  may  be  readily  obtained  for  the  dismissal  of  the 
supposed  suit.  It  is  surprising  that  a  course  by  which  a  cestui  que  trust 
of  stock  may  be  so  effectually  protected  from  any  fraudulent  transfer  by 
his  trustee  should  not  be  more  frequently  adopted. 

Stock,  being  a  kind  of  cliose  in  action,  could  not  formerly  have  been 
sold  under  o.  fieri  facias  issued  in  execution  of  a  judgment  against  the 
owner.{2y  And  in  fact,  in  the  acts  by  which  stocks  were  created,  it  was 
declared  that  they  should  not  be  taken  in  execution. (/t)  But  by  the  act 
for  extending  the  remedies  of  creditors  against  the  property  of  debtors, (?) 
it  is  provided  that  any  judge  of  one  of  the  superior  courts  of  common 
law,(m)  on  the  application  of  any  judgment  creditor,  may  order  that  any 
government  stock  of  the  debtor  standing  in  his  own  name,  or  in  the  name 
of  any  person  in  trust  for  him,  shall  stand  charged  with  the  payment  of 
the  judgment  debt  and  interest,  and  such  order  shall  entitle  the  judgment 
creditor  to  all  such  remedies  as  he  would  have  been  entitled  to  if  such 
charge  had  been  made  in  his  favor  by  the  debtor ;  but  no  proceedings 
are  to  be  taken  to  have  the  benefit  of  such  charge  until  after  the  expira- 
tion of  six  calendar  months  from  the  date  of  such  order.(w)  And  by  a 
subsequent  act  of  *parliament,(o)  this  provision  is  declared  to  r*2071 
extend  to  the  interest  of  any  judgment  debtor,  whether  in  pos- 

(t)  Dundas  v.  Dutens,  1  Ves.  jun.  198. 

(Jc)  Bank  of  England  v.  Lunn,  15  Ves.  577. 

(I)  Stat.  1  &  2  Vict.  c.  110,  s.  14.  (m)  Miles  v.  Presland,  4  Myl.  &  Cr.  431. 

(n)  See  Watts  v.  JefiFeryes,  3  Macn.  &  G.  372  ;  Watts  v.  Porter,  Q.  B.  1  Jur.  N.  S. 
133  ;  3  E.  &  B.  743  (E.  C.  L.  R.  vol.  77).  Contra,  Beavan  v.  Earl  of  Oxford,  6  De  G.,  M. 
&  G.  524,  525,  532  ;  Scott  v.  Lord  Hastings,  4  Kay  &  J.  633,  638  ;  Crow  v.  Robinson, 
Law  Rep.  4  C.  P.  264,  267  ;  Pickering  v.  Ilfracombe  Railway  Co.,  Law  Rep.  3  C.  P. 
235,  251. 

(o)  Stat.  3  &  4  Vict.  c.  82,  s.  1.     See  Hulkes  v.  Day,  10  Sim.  41. 


1  In  Maryland,  New  Jersey,  Wisconsin,  transfer  of  bank  stock  can  be  made  by  a 

and  Pennsylvania,  stock  may  be  taken  in  debtor,  after  a  judgment  obtained  against 

execution  for  the  payment  of  debts:  Md.  him:  New  Dig.  Laws  of  Ga.,  vol.  i.  p.  512. 

Code,  p.  49,  art.  10,  §  19;  Suppl.  (1868),  p.  In  Ohio  the  statutes  give  certain  regula- 

92,  art.   26,  sees.    198,   &c.  ;  Nixon's  Dig.  lions  respecting  the   manner  in   which  a 

Laws  of  N.   J.  (1868),  p.  294,   |    7,  Rev.  creditor  may  proceed  in  chancery,  against 

Stats,  of  Wis.  (1858),  p.  787,  ^  33  ;  Purd.  his  debtor's  equities,  stock,  &c.,   see  2  Rev. 

Dig.  (1861),  p.  432,  §   12.     In  Georgia  no  Stats,  of  Ohio  (1861),  p.  1086,  I  458,  &c. 


207  OF   INCORPOREAL    PERSONAL    PROPERTY. 

session,  reniaiiulcr  or  reversion,  and  whether  vested  or  contingent,  as  well 
in  such  stock  as  in  the  dividends  or  annual  produce  thereof,  and  also  to 
stock  in  which  the  debtor  may  be  interested  standing  in  the  name  of  the 
accountant-general  of  the  Court  of  Chancery. (jo)  And  in  order  to  pre- 
vent any  judgment  debtor  from  disposing  of  the  stock  authorized  to 
be  charged,  an  order  may  be  procured  by  the  creditor,  in  tlie  first  in- 
stance ex  parte^  restraining  the  Bank  of  England  from  permitting  a 
transfer  of  the  stock  until  the  order  shall  either  be  made  absolute 
(that  is,  confirmed  and  continued)  or  discharged  ;  and  no  disposition 
of  the  judgment  debtor  in  the  meantime  is  to  be  valid  or  effectual 
as  acainst  the  creditor.  And  the  order  will  be  made  absolute  if  the 
debtor  do  not,  within  a  time  mentioned  in  the  order,  show  cause  to 
the  contrary.(5')  When  the  debtor  is  entitled  to  the  dividends  of  stock 
standing  in  the  names  of  trustees,  the  order  obtained  by  the  creditor 
charging  such  dividends  will  be  binding  on  the  trustees ;  but  the 
Bank  must  still  pay  the  dividends  to  the  trustees  as  legal  owners. (r) 

The  history  of  the  law  respecting  the  transmission  of  stock  by  will 
affords  a  curious  instance  of  the  enactments  of  the  legislature  having  been 
virtually  overruled  by  the  decisions  of  the  Court  of  Chancery.  The  acts 
by  which  the  funds  were  created  provided,  that  any  person  possessed  of 
r*9081  ^^^^^  might  devise  the  same  by  will  *in  writing  attested  hy  tivo 
or  more  credible  witnesses,  but  that  such  devisee  should  receive 
no  payment  till  so  much  of  the  will  as  related  to  the  stock  had  been 
entered  in  the  ofifice  at  the  Bank  ;  and  in  default  of  such  devise  the  stock 
should  go  to  the  executors  or  administrators. (s)  The  Court  of  Chancery 
however  held,  that  as  stock  had  been  declared  by  parliament  to  be  per- 
sonal estate,  it  must,  like  all  other  personal  estate,  devolve,  in  the  first 
instance,  on  the  executor  for  payment  of  debts,  even  though  it  should 
have  been  specially  bequeathed  ;(t)  and  that  the  executor,  having  it  in 
his  hands  by  virtue  of  his  office  of  executor,  was  bound  after  payment  of 
debts  to  dispose  of  it  according  to  the  will  of  his  testator,  even  although 
such  will  were  unattested.(w)     For,  previously  to  the  act  for  the  amend- 

{p)  See  Warburton  v.  Hill,  1  Kay  470  ;  Haly  v.  Barry,  Law  Rep.  3  Ch.  Ap.  452,  456, 
457. 

(j)  Stat.  1  k  2  Vict.  c.  110,  s.  15. 

(r)  Churchill  v.  Bank  of  England,  11  M.  &  "W.  323  ;  Bristead  v.  Wilkins,  3  Hare  235  ; 
and  see  Taylor  v.  Turnbull,  4  H.  &  N.  495. 

{«)  Stat.  1  Geo.  I.  stat.  2,  c.  19,  s.  12,  and  subsequent  acts. 

{t)  Bank  of  England  v.  MofFatt,  3  Bro.  C.  C.  260 ;  Bank  of  England  v.  Parsons,  5  Ves. 
665;  Bank  of  England  v.  Lunn,  15  Ves.  509. 

(m)  Ripley  v.  Waterworth,  7  Ves.  440;  Franklin  v.  Bank  of  England,  Id.  575,  589. 


OF   PERSONAL   ANNUITIES,    STOCKS   AND   SHARES. 


208 


ment  of  the  laws  with  respect  to  wills,(a;)  a  will  of  personal  estate 
required  no  attestation.  In  effect,  therefore,  a  person  was  enabled  to 
bequeath  his  stock  by  a  will  unattested.  All  wills,  however,  are  not 
required  to  be  attested  by  two  witnesses.  And  by  a  recent  act  of  par- 
liament the  provisions  of  the  old  acts,  which  had  virtually  been  disre- 
garded, have  been  formally  repealed ;  and  it  is  declared  that  the  stock  of 
a  deceased  person  may  be  transferred  by  his  executors  or  administrators, 
notwithstanding  any  specific  bequest  or  disposition  thereof  contained  in 
the  will ;  but  the  Bank  are  not  to  be  required  to  allow  of  such  transfer, 
or  of  the  receipt  of  any  dividend  on  the  stock,  until  the  probate  of  the 
will  or  the  letters  of  administration  shall  have  been  first  left  at  the  Bank 
for  registration.^     And  the  Bank  may  require  all   the  executors  who 

(x)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26. 


^  The  assent  of  the  executor  must  be 
obtained,  before  a  legatee  can  take  pos- 
session of  his  legacy  :  McClanahan's  Admr. 
V.  Davis  et.  al.,  8  How.  170 ;  Rea  v.  Rhodes, 
5  Ired.  Eq.  148  ;  Nunn  v.  Owens,  2  Strobh. 
101 ;  Hudson,  Exr.  v.  Reeve,  1  Barb.  S.  C. 
89 ;  in  which  last  case  it  was  held,  that 
where  the  executrix  and  legatee  are  the 
same  person,  the  executrix,  as  such,  might 
assent  to  the  legacy  to  herself,  and  that 
assent  would  vest  the  title  in  her;  and 
this  is  true  also  of  specific  legacies  :  West 
V.  Smith  et  al.,  8  How.  411 ;  Lark  et  al.  v. 
Linstead  et  al.,  2  Md.  Ch.  Dec.  162  ;  Christ 
V.  Christ,  Admr.,  1  Cart.  (Ind.)  570;  Finch 
V.  Rogers,  11  Humph.  559.  And,  if  an  exe- 
cutor refuses  to  assent  to  a  legacy  without 
adequate  cause,  the  legatee  may  come  into 
equity  to  compel  an  assent :  Vaughan  v. 
Vaughan,  30  Ala.  329  ;  Lewis  v.  Darling, 
16  How.  (U.  S.)  1.  But  the  consent  of 
the  executor  may  be  implied  from  the 
nature  of  the  circumstances  :  Squires  et 
ux.  V.  Old,  7  Humph.  454;  Hall  v.  Hall,  27 
Miss.  458;  and  the  assent  of  an  executor 
to  the  bequest  of  a  life  estate,  operates  as 
to  the  bequest  of  the  remainder  over,  so 
that  no  new  assent  is  necessary :  Thrasher 
V.  Ingram,  32  Ala.  645 ;  Hotchkiss  v. 
Thomas,  6  Jones  L.  537  ;  Gay  v.  Gay,  29 
Ga.  549  ;  and  when  once  given  cannot  be 
retracted:  Ross  v.  Davis,  17  Ark.  113; 
Dunham  v.  Elford,  13  Rich.  Eq.  190 ;  but 
the  assent  is  no  waiver  of  his  right  to  a 
refunding  bond:  Nelson   v.  Cornwell,   11 


Gratt.  724  ;  and  see,  also,  Rea  v.  Rhodes, 
5  Ired  Eq.  148  ;  White  v.  White,  4  Dev. 
257  ;  Gums  v.  Capehart,  5  Jones  Eq.  242  ; 
Suggs  V.  Sapp,  20  Ga.  100.  A  transfer 
agent  of  a  corporation,  before  permitting 
the  transfer  of  a  portion  of  its  stock,  ap- 
pearing on  the  face  of  the  certificate  to  be 
held  in  trust,  has  a  right,  especially  if  the 
cestui  que  trust  is  named,  to  require  the 
exhibition  of  the  authority  to  transfer,  be- 
yond the  certificate :  Bayard  v.  F.  &  M. 
Bank,  52  Penn.  St.  232. 

In  the  case  of  Norman  et  ux.  v.  Storer  et 
al.,  1  Blatch.  C.  C.  593,  where  $1000  was 
given  to  a  legatee  by  will,  the  money  to 
be  raised  out  of  the  testator's  estate,  and 
paid  over  to  the  legatee,  and  the  executor 
and  trustee  under  the  will,  having  raised 
the  money,  instead  of  paying  it  as 're- 
quired, purchased  bank  stock  with  it,  in 
his  own  name,  in  trust  for  the  legatee  ; 
and  afterwards,  when  called  upon  to 
account,  sold  the  bank  stock,  and  paid 
over  the  proceeds,  $1460  34,  to  the  duly 
authorized  agent  of  the  beneficiary,  which 
•he  received  as  and  for  the  $1000  legacy, 
the  stock  having  been  sold  with  his 
knowledge  and  assent;  it  was  held,  that  as 
there  was  no  evidence  that  the  legatee  was 
advised  of  the  purchase  of  the  bank  stock, 
or  ever  assented  to  it,  the  executor  had  a 
right  to  sell  the  stock  and  pay  over  the 
proceeds,  for  the  stock  did  not  belong  to 
the  legatee,  and  the  executor  was  guilty  of 
no  conversion  or  wrong  in  selling  it. 


208  OF  INCORPOREAL  PERSONAL  PROPERTY. 

shall  have  proved  the  will  to  concur  in  the  transfer.(y)   And  the  registry 
of  specific  bequests  of  *stock  is  no  longer  required,  but  merely 
[  -^"'J    the  rc'^istry  of  the  names  of  the  deceased  party,  and  of  his  exe- 
cutor and  administrators. (2) 

The  next  kind  of  incorporeal  personal  property  which  we  shall  men- 
tion are  shares  in  joint  stock  companies.  Joint  stock  companies  were 
formerly  of  two  kinds,  those  which  were  incorporate,  or  made  into  cor- 
f  orations  and  those  which  were  not  so. 

Corporations  are  legal  personages,  always  known  by  the  same  name, 
and  preserving  their  identity  through  a  perpetual  succession  of  natural 
persons.  They  are  either  corporations  8o?g,  composed  only  of  one  per- 
son, such  as  a  bishop,  a  parson,  or  the  chamberlain  of  London  ;  or  cor- 
porations aggregate.,  composed  of  many  persons  acting  on  all  solemn 
occasions  by  the  medium  of  their  common  seal  ;{a)  and  it  is  of  such  cor- 
porations that  we  are  now  about  to  speak.  Such  corporations  may  be 
created  either  by  charter  conferred  by  the  queen's  letters-patent,  or  by 
act  of  parliament.^  And,  till  a  few  years  ago,  all  joint  stock  companies 
which  had  not  obtained  this  expensive  sanction  were  in  fact  private  part- 
nerships on  an  extended  scale.  In  the  present  reign  however,  as  we  shall 
hereafter  see,  provision  has  been  made  for  the  incorporation  of  all  public 
joint  stock  companies  ;(5)  but  such  companies  as  are  incorporated  by 
letters-patent  or  special  act  of  parliament  still  enjoy  peculiar  privileges. 
These  companies  therefore  first  require  notice. 

The  nature  and  incidents  of  shares  in  the  joint  stock  of  companies 

r*9101    incorporated  by  letters-patent  or  act  of  *parliament  have  gener- 

erally  been  determined  by  their  respective  charters  or  acts  of 

incorporation.      And  in  the  great  majority  of  cases,  and  in  all  the 

(y)  Stat  8  &  9  Vict.  c.  97,  s.  1.  {z)  Sect.  2. 

(a)  See  Bac.  Abr.,  tit.  Corporations,  1  Black.  Com.  ch.  18. 

(6)  Stat.  7  &  8  Vict.  c.  110;  partly  repealed  by  stat.  20  &  21  Vict.  C;  14,  s.  23  ;  7  & 
8  Vict.  c.  113,  partly  repealed  by  stat.  20  &  21  Vict.  c.  49,  all  now  repealed  by  the 
Companies  Act,  1862,  stat.  25  &  26  Vict.  c.  89. 

1  In  the  United  States,  corporations  are  pursuing  certain  formalities.  Special  acts 
created  in  all  cases,  under  the  authority  of  incorporation,  whether  of  Congress  or 
of  Acts  of  Congress,  or  of  Acts  of  Assem-  of  Assembly,  either  themselves  create  the 
bly.  These  may  be  general  or  special  corporations,  or  authorize  the  executive, 
acts.  The  former  confer  authority  on  on  compliance  with  certain  stipulated  con- 
courts  to  grant  charters  in  designated  ditions,  by  the  persons  who  desire  to  be 
cases,  or  allow  individuals  when  associ-  incorporated,  to  issue  to  such  persons  let- 
ated  together,  to  incorporate  themselves  by  ters-patent  of  incorporation. 


OF   PERSONAL   ANNUITIES,    STOCKS   AND   SHARES.  210 

modern  charters  and  acts  of  incorporation,  the  shares  are  declared  to  be 
personal  estate,  and  transmissible  as  such.  In  a  few  of  the  older  com- 
panies, of  which  the  New  River  Company  is  an  instance,(e)  the  shares 
are  real  estate  in  t|he  nature  of  incorporeal  hereditaments.  For  the 
future,  however,  all  the  provisions  contained  in  special  acts  for  the  incor- 
poration of  joint  stock  companies  will,  as  far  possible,  be  the  same.  For 
an  act  of  parliament  has  been  passed  "for  consolidating  in  one  act  cer- 
tain provisions  usually  inserted  in  acts  with  respect  to  the  constitution 
of  companies  incorporated  for  carrying  on  undertakings  of  a  public 
nature."((^)^  Other  acts  have  also  been  passed  for  consolidating  certain 
provisions  usually  inserted  in  acts  authorizing  the  taking  of  lands  for 
undertakings  of  a  public  nature  ;(e)  in  acts  authorizing  the  making  of 
railways  ;(/)  in  acts  for  constructing  or  regulating  markets  and  fairs  ;(^) 
in  acts  authorizing  the  making  of  gasworks  for  supplying  towns  with 
gas  :{h)  or  of  waterworks  for  supplying  towns  with  water  ;(z)  in  acts 
for  the  making  and  improving  of  harbors,  docks  and  piers  ;{k)  in  acts 
for  paving,  draining,  cleansing,  lighting  and  improving  towns  ;{l) 
and  in  acts  authorizing  the  making  of  cemeteries.(wi)  In  each  of 
these  acts  enactments  are  made  with  respect  to  various  matters 
♦usually  contained  in  acts  of  incorporation  for  the  above  pur-  r^n-ji-i 
poses  ;  and  it  is  provided  that  the  clauses  and  provisions  of  these 

(c)  Drybutter  v.  Bartholomew,  2  P.  Wms.  127. 

(d)  Stat.  8  &  9  Vict.  c.  16,  extended  by  stat.  26  &   27  Vict.  c.  118,  amended  by  stat. 
32  &  33  Vict.  c.  48. 

(e)  Stat.  8  &  9  Vict.  c.  18,  extended  by  stat.  23  &  24  Vict.  c.  106. 

(/)  Stat.  8  &  9  Vict,  a  20,  extended  by  stat.  26  &  27  Vict.  c.  92.     See  also  stat.  27 
&  28  Vict.  c.  120,  27  &  28  Vict.  c.  121,  30  &  31  Vict.  c.  127,  32  &  33  Vict.  c.  114. 
{g)  Stat.  10  &  11  Vict.  c.  14.  (A)  Stat.  10  &  11  Vict.  c.  15. 

{{)  Stat.  10  &  11  Vict.  c.  17,  extended  by  stat.  26  &  27  Vict.  c.  93. 
{k)  Stat.  10  &  11  Vict.  c.  27.  (l)  Stat.  10  &  11  Vict.  c.  34. 

(m)  Stat.  10  &  11  Vict.  c.  65. 

1  General  provisions  relative  to  all  cor-  statutes  analogous  to  the  8  &  9  Vict.  c. 

porations  have  been  enacted  by  the  legis-  16,  s.  4,  &c.,  have  not  been  without  prece- 

latures  of  several    of  the  states,  Thomps.  dentin  this  country:  New  Dig.  Laws  of 

Dig.  of  the  Laws  of  Florida  268   to   284  ;  Georgia  (1851),  by  T.  R.   R.  Cobb,  vol.  1., 

Revis.  Stats.  Mass.  (1860),  pp.  384  to  389 ;  431  to  434  ;  Stats,  of  S.  C,  vol.  VI.,   302 

2  Compiled  Laws,   Michigan  (1857),    pp.  to    306.     The    Manufacturing  Companies' 

699  to  706  ;  N.  H.  Compiled  Stats.  (1867),  Act,  Purd.  Dig.   (1861),  pp.   689   to  696; 

p.  275,   &c.  ;  Nixon's  Dig.  Laws   of  N.  J.  and  Purd.  Dig.  Suppl.  (1871),  pp.  1347  to 

(1868),  pp.  167  to   173  ;  2  Revis.  Stats,  of  1351  ;    Th«    Turnpike   Bridge    and   Plank 

N.  Y.  (1859),  pp.  476  to  825  ;  Revis.  Stats.  Road  Companies'  Act,  Purd.  Dig.    (1861), 

of  Vt.  (1839),  378  to  394;   1  Matthews'  Dig.  pp.  979  to  988  ;  The  Railroad  Companies' 

of  Laws  of  Va.   (1856),   pp.  421  to  433;  Act,  Id.  835  to  850,  and  their  respective 

Purd.  Dig.   (1861),  pp.   194  to  202.     And  supplements. 


211  OF    INCORPOIIEAL    PERSONAL    PROPERTY. 

general  acts,  save  so  far  as  they  shall  be  expressly  varied  or  excepted 
by  any  special  act,  shall  apply  to  every  undertaking  which  shall  there- 
after be  authorized  by  act  of  parliament  for  any  of  the  purposes  above 
referred  to.  A  uniformity  is  thus  given  to  the  constitution  of  such  com- 
panies, and  the  length  of  the  acts  of  parliament  required  to  establish 
them  has  been  greatly  diminished.  A  short  title,  for  the  convenience  of 
reference,  is  given  to  each  act.  The  act  first  mentioned  is  called  "  The 
Companies  Clauses  Consolidation  Act,  1845 ;  "(w)  the  acts  amending  it 
are  called  "The  Companies  Clauses  Act,  1863,"(o')  and  "The  Com- 
panies Clauses  Act,  1869;  "(j))  and  all  the  others  have  similar  titles. 

The  Companies  Clauses  Consolidation  Act^  contains  provisions  with 
respect  to  the  distribution  of  the  capital  of  the  company  into  shares, 
"which  are  to  be  personal  estate,  and  transmissible  as  such  ;[q)  with  re- 
spect to  the  transfer  of  shares,  which  must  be  by  deed  duly  stamped,  in 
which  the  consideration  shall  be  truly  stated,(r)  and  which  cannot  take 
place  until  the  transferor  shall  have  paid  all  calls  for  the  time  being  due 
on  every  share  held  by  him  ;(.s')  with  respect  to  the  transmission  of  shares 
by  will,  intestacy,  marriage  of  a  female,  &c.  ;{t)  with  respect  to  the  pay- 
r*9i9-|  meut  of  calls,(M)  which  *may  be  made  payable  by  instalments,(t;) 
and  the  forfeiture  of  shares  for  nonpayment  of  calls  ;{w)  with 
respect  to  the  remedies  of  creditors  of  the  company  against  the  share- 
holders,(a')  which  are  confined  to  the  extent  of  their  shares  in  the  capital 

(w)  Stat.  8  &  9  Vict.  c.  16,  s.  4.  (o)  Stat.  2G  &  27  Vict.  c.  118. 

(p)  Stat.  32  &  33  Vict.  c.  48.  (q)  Stat.  8  &  9  Vict.  c.  16,  s.  7. 

(r)  Sect.  14. 

(«)  Sect.  16  ;  Hall  v.  Norfolk  Estuary  Company,  Q.  B.  16  Jur.  149;  Regina  v.  Lon- 
donderry and  Coleraine  Railway  Company,  13  Q.  B.  998  (E.  C.  L.  R.  vol.  66)  ;  Hub- 
bersty  v.  Manchester,  Sheffield  and  Lincolnshire  Railway   Company,  36  L.  J.  N.  S.  Q. 

B.  198. 

(l)  Sects.  18,  19. 

(m)  Sects.  21-28;  see  Wolverhampton  New  Waterworks  Company  v.  Hawkcsford,  6 

C.  B.  N.  S.  336  (E.  C.  L.  R.  vol.  95). 

(v)  Ambergate,  &c.  Railway  Company  v.  Norcliffc,  6  Ex.  Rep.  629. 
(w)  Sects.  29-35.  (z)  Sect.  36. 

1  In  the  preceding  page,  a  reference  has  corporations,  as  for  manufacturing  pur- 
been  made  to  several  acts,  analogous  to  poses,  and  the  like.  The  advantage  of 
the  "  Companies'  Clauses  Consolidation  these  enactments  is  found  in  the  fact,  that 
Act,"  and  "  the  act  for  the  registration,  in-  they  form  a  general  law,  applicable  to  all 
corporation,  and  regulation  of  joint  stock  corporations  falling  under  the  class  to 
companies,"  and  among  others,  to  the  which  they  relate,  and  as  such  are  drafted 
Pennsylvania  Turnpike  Act,  and  the  Man-  with  more  care,  and  more  thoroughly  con- 
ufacturing  Companies'  Act,  of  the  same  sidered  ihan  private  bills  of  incorporation. 
State.  Some  of  these  acts  are  not  entirely  whereby  many  of  the  dangers  resulting 
general,    but   relate    to    certain    kinds    of  from  hasty  legislation  are  avoided. 


I 


OF   PERSONAL    ANNUITIES,    STOCKS   AND    SHARES.  212 

of  the  company  not  then  paid  up,  and  may  be  exercised  only  in  case 
there  cannot  be  found  sufficient  property  or  effects-  of  the  company 
whereon  to  levy  execution  •,[y)  with  respect  to  the  borrowing  of  money 
by  the  company,(2)  the  conversion  of  the  borrowed  money  into  capital, (a) 
the  consolidation  of  the  shares  into  stock, (5)  general  meetings,(c)  the 
appointment  and  rotation  of  directors, ((?)  the  powers,(e)  proceedings  and 
and  liabilities  of  the  directors,(/)  the  appointment  and  duties  of  audit- 
ors,((7)  the  accountability  of  the  officers  of  the  company,(/i)  the  keeping  of 
accounts,(«')  the  making  of  dividends(^)  and  of  by-laws,(?)  the  settemcnt 
of  disputes  by  arbitration, (w)  the  giving  of  notices,(n)  the  recovery  of 
damages  and  penalties,(o)  and  appeals  with  respect  to  such  damages  or 
penalties  to  the  quarter  sessions  ;(j^)  and,  lastly,  with  respect  to  aiford- 
ing  access  to  the  special  act  by  all  parties  interested.(5')  The  provisions 
of  the  other  acts  are  not  of  a  nature  to  require  enumeration.  By  a 
recent  act  of  *parliament  provision  has  been  made  for  the  exon-  r^c)-i  o-i 
eration  from  stamp  duty  of  transfers  of  bonds  and  mortgages  ^  *^  J 
given  by  public  companies  for  money  which  by  their  acts  of  parliament 
they  may  be  authorized  to  borrow  on  the  original  bond  or  mortgage 
being  stamped  in  the  first  instance  with  three  times  the  amount  of  the 
ad  valorem  duty  over  and  above  such  duty.(r)^ 

Joint  stock  companies  which  had  not  obtained  letters-patent  or  special 
acts  of  incorporation  were  formerly  subjected  to  very  great  inconvenience 
whenever  they  had  occasion  to  take  legal  proceedings  against  any  person 
who  happened  to  be  a  shareholder.  And  every  shareholder  in  such 
companies  was  subjected   to  the  like  inconvenience  whenever  he'  had 

(y)  Devereux  v.  Kilkennj^,  &c.  Railway  Company,  5  Ex.  Rep.  834 ;  Ilitchins  v.  Kil- 
kenny, &c.  Railway  Company,  10  C.  B.  160  (E.  C.  L.  R.  vol.  70)  ;  Nixon  v.  Brownlow, 
3H.  &  N.  686. 

(z)  Stat.  8  &  9  Vict.  c.  16,  ss.  38-55.  (a)  Sects.  56-00. 

[b)  Sects.  61-64.  (c)  Sects.  66-80. 

{d)  Sects.  81-89.  [e)  Sects.  90,  91. 

(/)  Sects.  92-100  ;  Wilson  v.  West  Hartlepool  Harbor  and  Railway  Company,  Lds. 
Js.,  11  Jur.  N.  S.  124. 

{g)  Sects.  101-108.  {h)  Sects.  109-114.. 

(?)  Sects.  115-119.  {k)  Sects.  120-123.. 

(I)  Sects.  124-127.  {m)  Sects.  128-134.. 

(n)  Sects.  135-139.  (o)  Sects.  142-158. 

{p)  Sects.  159,  160.  (?)  Sects.  16L,  162. 

(/•)  Stat.  16  &  17  Vict.  c.  59,  s.  14. 

1  By  the  170th  sec.   of  the  Act  of  Con-  signment  of  a  mortgage,  where  It,  or  the 

gress  of  June  30,  1804,  as  amended   by  the  instrument  it  secures,  has  been  once  duly 

4th  sec.  of  the  Act  of  July  13,1870,   no  stamped:    Stats,    at   Large    (1869-1870), 

stamp  is  required  upon  the  transfer  or  as-  p.  257. 
18 


213  OF  INCORPOREAL  PERSONAL  PROPERTY. 

occasion  to  proceed  against  the  company.  For  such  a  company,  however 
extensive,  was  in  law  merely  a  partnership  ;  and  a  partner  who  owes 
money  to  the  partnership  of  which  he  is  a  member,  evidently  owes  a 
portion  of  it  to  himself  according  to  his  interest  in  the  joint  stock:  and 
in  like  manner  a  partner  who  is  a  creditor  claims  part  of  his  demand 
against  himself.  In  each  case,  therefore,  an  account  must  be  settled 
before  the  exact  debt  or  credit  of  the  partner  can  be  asccrtained.(s)  In 
order  to  obviate  the  difficulties  which  thus  arose,  many  joint  stock  com- 
panies obtained  special  acts  of  parliament,  enabling  them  to  sue  and  be 
sued  in  the  name  of  some  officer.  And  an  act  of  parliament(^)  was  passed 
empowering  the  crown  to  grant,  by  letters-patent,  charters  to  companies 
for  any  trading  or  other  purposes  whatsoever,  which,  without  incorpor- 
ating such  companies,  would  empower  them  to  sue  and  be  sued  in  the 
name  of  some  officer  appointed  and  registered  for  the  purpose.  This 
r*oii"|  *'^^*  ^^  ^^^^^  ^^  force,  and  it  contains  a  valuable  provision,  em- 
'-  "  powering  the  crown  to  limit,  by  the  letters-patent,  the   liability 

of  the  individual  members  of  the  company  for  its  engagements  to  a 
given  extent  per  share.(w)  Banking  companies,  whose  shareholders  are 
generally  their  customers,  were  peculiarly  subject  to  the  inconvenience 
above  referred  to  in  suing  and  being  sued.  Accordingly  by  modern 
statutes,(a;)  all  such  banking  companies  as  consisted  of  more  that  six  mem- 
bers were  allowed  to  appoint  some  public  officer  who  must  sue  and  be  sued 
on  behalf  of  the  company.(y)  More  recently,  however,  two  acts  of  parlia- 
ment were  passed,  the  one  incorporating  public  joint  stock  companies, 
the  other  for  providing  for  the  incorporation  of  joint  stock  banks.  Each 
of  these  acts  require  some  notice. 

The  first  act  was  intituled  "  An  Act  for  the  Registration,  Incorpoi-a- 
tion  and  Regulation  of  Joint  Stock  Companies. "(2)  This  act  applied  to 
every  joint  stock  company  established  for  any  commercial  purpose,  or 
for  any  purpose  of  profit, (a)  or  for  the  purpose  of  insurance  (except 
banking  companies,  schools  and  scientific  and  literary  institutions,  and 

(s)  Sec  Richardson  v.  Bank  of  England,  4  Myl.  &  Cr.  1G5. 

[t)  Stat.  7  WiU.  IV.  &  1  Vict.  c.  73,  repealing  a  former  statute  for  a  similar  purpose, 
4  &  5  Will.  IV.  c.  94. 

(m)  Stat.  7  Will.  IV.  &  1  Vict.  c.  73,  s.  4. 

{x)  Stats.  7  Geo.  IV.  c.  46,  s.  9  et  seq. ;  1  &  2  Vict  c.  96  ;  extended,  3  &  4  Vict.  c. 
Ill  ;  made  perpetual,  5  &  6  Vict.  c.  85  ;  27  &  28  Vict.  c.  32. 

(y)  Chapman  v.  Milvain,  5  E.x.  Rep.  61;  Steward  v.  Greaves,  10  M.  &  W.  711. 

(z)  Stat.  7  &  8  Vict.  c.  110,  amended  by  stat.  10  &  11  Vict.  c.  78. 

(a)  See  The  Queen  r.  Whitemarsh,  15  Q.  B.  600  (E.  C.  L.  R.  vol.  69) ;  Bear  v.  Bromley, 
21  L.  J.  Q.  B.  354.;  .18  Q.  B.  271  (E.  C.  L.  R.  vol.  83). 


OF   PERSONAL   ANNUITIES,    STOCKS    AND    SHARES.  214 

friendly,  loan  and  benefit  building  societies  duly  certified  and  enrolled 
under  the  statutes  in  force  respecting  such  societies  ;{b)  and  the  term 
"joint  stock  company"  comprehended  every  partnership  whereof  the 
capital  was  divided  or  agreed  to  be  divided  into  shares,  and  so  as  to  be 
transferable  without  the  express  consent  of  all  the  copartners  ;  and  also 
every  insurance  *company ;  whether  of  lives,  ships,  or  against  fire  p^o-i  r-, 
or  storm ;  and  every  company  for  granting  or  purchasing 
jinnuities  on  lives ;  and  every  friendly  society  insuring  to  an  amount  ex- 
ceeding 200^.  upon  one  life  or  for  any  one  person ;  and  also  every  part- 
nership which  at  its  formation,  or  by  subsequent  admission  (except  any 
admission  consequent  on  devolution  or  other  act  of  law),  should  consist 
of  more  than  twenty-five  members.  But  the  act  did  not  apply  to  com- 
panies incorporated  by  statute  or  charter,  nor  to  companies 'authorized 
to  sue  and  be  sued  in  the  name  of  some  officer  or  person. (c)  This  act, 
however,  has  since  been  repealed.(c^)  It  provided  for  the  establishment 
of  a  registry  oflfice,  in  which  the  name  and  business  of  every  projected 
company,  together  with  the  names,  occupations  and  places  of  business 
and  residence  of  the  promoters  of  the  company,  were  required  to  be 
registered  before  they  could  proceed  to  make  public,  whether  by  way  of 
prospectus,  handbill  or  advertisement,  any  intention  or  proposal  to  form 
the  company.(e)  Further  particulars  were  also  to  be  registered  as  they 
should  be  decided  on  from  time  to  time.(/)  This  registration,  however, 
only  enabled  the  company  to  act  provisionally,  and  it  was  therefore 
termed  jjrovisional  registration.  And  before  the  company  could  act 
otherwise  than  provisionally,  it  was  required  to  obtain  a  certificate  of 
comjylete  registration.  This  certificate  could  only  be  obtained  on  pro- 
duction of  a  deed  of  settlement  of  the  company,  according  to  the  form 
set  forth  in  the  act,  signed  by  at  least  one-fourth  in  number  of  the  per- 
sons who  at  the  date  of  the  deed  had  become  subscribers,  and  who  should 
hold  at  least  one-fourth  of  the  maximum  number  of  shares  in  the  capital 
of  the  company. ((/)  *This  deed  was  required  to  be  certified  by  r*2l «! 
two  directors  of  the  company  in  a  given  form,  and  along  with  it 
was  to  be  produced  a  complete  abstract  or  index  of  the  deed,  together 
with  a  copy  of  it  for  registration.  Provision  was  also  made  for  the 
registration,  half-yearly  or  oftener,  of  all  transfers  of  shares,  and  of 
changes  in  the  names  of  the  shareholders,  (/i)  and  for  an  annual  return 

(b)  See  post,  p.  230.  (c)  Sect.  2. 

(d)  Stat.  25  &  26  Vict.  c.  89. 

(e)  Stat.  7  &  8  Vict.  c.  110,  s.  4.     See  also  stat.  10  &  11  Vict.  c.  18,  s.  7  ;  Abbott  v. 
Rogers,  C.  P.  1  Jur.  N.  S.  804 ;  16  C.  B.  277  (E.  C.  L.  R.  vol.  81). 

(/)  Stat.  7  &  8  Vict.  c.  110,  s.  4 ;  10  &  11  Vict.  c.  78,  ss.  4,  5,  6. 

(g)  Stat.  7  &  8  Vict.  c.  110,  s.  7.  (h)  Stat.  7  &  8  Vict.  c.  110,  ss.  11-13. 


21G  OF  INCORPOREAL  PERSONAL  PROPERTY. 

of  tlic  name  and  business  of  every  company. (/)  On  complete  registration 
being  certified  the  company  became  incorporated{k)  as  from  the  date  of 
the  certificate,  by  the  name  of  the  company  as  set  forth  in  the  deed  of 
settlement,  with  power  to  have  a  common  seal,  but  on  which  was  to  be 
inscribed  the  name  of  the  company,  and  with  other  poAvers  necessary  to 
the  conduct  of  their  aifairs,(Z)  including  a  power  to  hold  lands  on  obtain- 
ing a  license  for  that  purpose  from  the  Board  of  Trade.(r/j)  Provision 
was  also  made  for  the  registry  of  joint  stock  companies  then  existing, 
and  for  the  alteration  of  their  deeds  of  settlement  in  order  to  comply 
with  the  provisions  of  the  act.(w)  The  transfer  of  shares  was  required 
to  be  effected  by  deed  in  a  given  form,  to  be  duly  stamped,  and  in  which 
the  full  amount  of  the  pecuniary  consideration  for  the  sale  was  to  be 
truly  expressed. (o)  But  no  sale  or  mortgage  of  any  share  was  valid 
until  the  company  had  obtained  a  certificate  of  complete  registration  and 
the  subscriber  had  been  duly  registered  as  a  shareholder  in  the  Registry 
Office  ;(jo)  and  no  transfer  could  be  made  if  the  transferor  should  not 
then  have  paid  up  the  full  amount  due  to  the  company  on  ever}'^  share 
held  by  him,  unless  there  were  a  provision  to  the  contrary  in  the  deed 
r^oiTn  of  settlement.(^)*  *Shareholders  in  these  companies  were  liable 
.to  the  creditors  of  the  company,  if  such  creditors  had  used  due 
diligence  to  obtain  satisfaction  by  execution  against  the  property  of  the 
company ;  but  after  the  expiration  of  three  years  next  after  any  person 
should  have  ceased  to  be  a  shareholder,  his  liability  ceased.(r) 

The  act  which  provides  for  the  incorporation  of  banking  companies 
was  intituled  "An  Act  to  regulate  Joint  Stock  Banks  in  England. "(s) 
This  act  has  now  been  repealed. (^)  The  incorporation  eff'ected  under 
the  provisions  of  this  act  was  by  letters-patent,  obtained,  on  petition, 
from  the  crown.     The   petition  was  referred   to  the  Board  of  Trade, 

(?)  Stat.  7  &  8  Vict.  c.  110,  s.  14. 

[k)  Banwen  Iron  Company  v.  Barnett,  8  C.  B.  406  (E.  C.  L.  R.  toI.  65). 

{l)  Stat.  7  &  8  Vict.  c.  110,  s.  25.  (m)  Stat.  10  &  11  Vict.  c.  78,  89.  I,  2,  3. 

{n)  Sects.  58,  5a.  (o)  Sect.  54. 

\p)  Sect.  26 ;  Ex  parte  Neilson,  3  De  G.,  M.  k  G.  55G. 

{q)  Sect.  54. 

(r)  Sects.  66-68 ;  Greenwood's  case,  3  De  G.,  M.  &  G.  459,  478 ;  s.  c.  18  Jur.  387, 

(a)  Stat.  7  &  8  Vict.  c.  113.  {t)  Stat.  25  &  26  Vict.  c.  89. 

^  Most  of  the  charters  of  incorporation  brief  letter   of   attorney,   signed   by  the 

in  the  United  States,  contain  a  clause  en-  owner  of  the  stock,  in  the  presence  of  a 

acting,  that  the  shares  thereof  shall  only  witness,  and  directed  to  an  officer  of  the 

be  transferred  on  the  books  of  the  institu-  bank,   or  in    blank,   authorizing    him    to 

tioD.     This  is,  in  general,  eflFected  by  a  transfer  to  the  vendee- 


OF    PERSONAL   ANNUITIES,    STOCKS   AND    SHARES.  217 

on  whose  report  a  charter  was  granted  to  the  company(tt)  for  a  term 
not  exceeding  twenty  years.(a;)  Other  provisions  were  also  made  for 
the  registration  of  the  company,  the  transfer  of  shares,  the  liability  of 
shareholders,  and  other  matters  which  it  is  now  unnecessary  to  state.^ 

The  main  object  of  the  two  statutes  above  referred  to  was  evidently  to 
give  publicity  to  the  names  of  the  real  promoters  and  shareholders  of 
joint  stock  companies,  so  that  the  public  might  know  with  whom  they 
were  dealing,  and  that  those  who  reaped  the  benefit  of  such  undertakings 
might  also  bear  their  proper  share  of  the  risk.  Another  object  was  to 
recognize,  as  legal  personages,  bodies  which  before  had  a  legal  existence, 
but  had  no  convenient  means  of  acting  or  of  being  acted  on.  In  the 
same  spirit  another  act  of  parliament  was  passed  in  the  same  session,  "  for 
facilitating  the  winding-up  the  affairs  of  joint  stock  companies  unable  to 
meet  *their  pecuniary  engagements."(?/)  By  this  act  all  incor-  r;t:.9-|o-| 
porated  or  privileged  companies  for  any  commercial  or  trading 
purposes,  including  banking  companies, (2)  and  also  all  joint  stock  com- 
panies within  the  definition  contained  in  the  act  for  their  incorporation, (a) 
were  made  liable  to  bankruptcy  in  the  same  manner  as  private  indi- 
viduals ;  but  the  bankruptcy  of  the  company  was  not  to  be  construed  to 
be  the  bankruptcy  of  any  member  of  the  company  in  his  individual 
capacity.(6)^     This  act,  however,  was  almost  entirely  superseded  by  the 

(m)  Stat.  7  &  8  Vict.  c.  113,  s.  3.  (z)  Sect.  6. 

(y)  Stat.  7  &  8  Vict.  c.  Ill,  amended  by  stat.  20  &  21  Vict.  c.  78. 

(z)  Stat.  7  &  8  Vict.  c.  113,  s.  48. 

(a)  Stat.  7  &  8  Vict.  c.  110,  s.  2;  ante,  p.  214. 

(b)  Stat.  7  &  8  Vict.  c.  Ill,  s.  2. 

1  By  the  laws  of  Pennsylvania,  any  nura-  tion,  cannot  authorize  the  secretary  to  file 

ber  of  persons   not  less   than   five,    asso-  a  petition  for  the   purpose   of  having  the 

elating    together    under    the     rules    and  corporation  adjudicated  a  bankrupt.  Such 

regulations,  prescribed  by  the  act  of  the  action  can  only  be   taken  by  the   majority 

legislature    of  that    state,  passed   May  1,  of  the  corporators; — that  is,  by  the  corpo- 

1861,   and  known  as  the   Banking  Compa-  rators  holding  a  majority  of  the  shares  of 

nies   Act,  may  become   a  body  corporate,  stock  :  Lady  Bryan   Mining  Co.,  4  B.   R. 

for  the  period  of  twenty  years:  Purd.  Dig.  36,  131. 

(1861),  p.  78,  &c.,  and  Supplements.  Railroad    corporations   are   within    the 

^  See  ante,  p.  132,  note  2  y.  operation    of    the    U.    S.    Bankrupt   Act: 

A  corporation  created  for  the  purpose  of  Adams  t\   Boston,  Hartford  &   Erie  R.  R. 

carrying  on  any  lawful   business,  defined  Co.,   4  B.  R.  99  ;  5    Id.   234  ;  Alabama  & 

by  its  charter,  and  clothed  with  power  to  Chattanooga  R.  R.  Co.  v.  Jones,  5  Id.  97, 

do  so,  is  such  as   is  contemplated  by  the  When   the   charter  of  a  corporation  does 

U.   S.   Bankrupt  Act :  Rankin  v.  Florida,  not  authorize  it  to  carry  on   the  business 

Atlantic  &  Gulf  Central  R.  R.  Co.,  1  B.  R.  of  a  banker,  broker,  manufacturer,  miner 

196.     The  board  of  trustees  of  a  corpora-  or  trader,  it  cannot  come  within  the  pro- 


218  OF   INCORPOREAL    PERSONAL   PROPERTY. 

"Joint  Stock  Companies  Winding-up  Act,  1848,"(c)  as  amended  by  the 
"Joint  Stock  Companies  AVinding-up  Amendment  Act,  18-49,"(f^)  under 
which  an  official  manager  was  appointed,  and  a  list  of  contributoriesmade 
out,  on  whom  calls  were  made  from  time  to  time  for  payment  of  the  debts 
and  lial)ilities  of  the  company.  These  acts  again  did  not  apply  to  com- 
panies registered  under  the  "  Joint  Stock  Companies  Act,  1856,"(e)  by 
which  act°  as  several  times  amended,(/)  joint  stock  companies  were  regu- 
lated, until  the  passing  of  the  "Companies  Act,  lS6'2."{g)  This  act 
has  repealed  and  consolidated  all  the  former  acts  relating  to  joint  stock 
companies. 

An  act  of  parliament  was  passed  in  1855  for  limiting  the  liability  of 
members  of  certain  joint  stock  companies.(/2)  Under  this  act  any  joint 
stock  company  to  *be  formed  under  the  act  7  &  8  Vict.  c.  110, 
'-"'-'  other  than  an  assurance  company,  with  a  capital  to  be  divided 
into  shares  of  a  nominal  value  of  not  less  than  10?.  each,  might  obtain  a 
certificate  of  complete  registration  with  limited  liability,  upon  complying 
with  certain  conditions.  With  reference  to  this  act  it  was  remarked  in 
the  third  edition  of  the  present  work,(i)  that  it  seems  that  all  that  can 
now  be  expected  of  an  act  of  parliament  is  to  introduce  a  principle  to  be 
worked  out  by  subsequent  amendments  ;  and  that  it  was  to  be  hoped  that 
the  principle  of  limited  liability  then  introduced  might  by  some  future 
act  be  both  more  widely  extended  and  more  accurately  applied.  This 
was  afterwards  done  by  the  Joint  Stock  Companies  Acts,  1856,(^)  and 
1857,(?)   and  the  Joint   Stock  Banking   Companies  Act,   lSi>l,{m)   as 

(c)  Stat.  11  &  12  Vict.  c.  45. 

(d)  Stat.  12  &  13  Vict.  c.  108,  amended  by  stat.  20  &  21  Vict.  c.  78;  and  see,  as  to 
railways,  stat.  13  &  14  Vict.  c.  83. 

(e)  Stat.  19  &  20  Vict.  c.  47,  s.  108. 

(f)  Stat.  20  &  21  Vict.  c.  14;   20  &  21  Vict.  c.  49  ;  21  &  22  Vict.  c.  GO;  21  &  22  Vict. 
c.  91. 

{ff)  Stat.  25  &  26  Vict.  c.  89;  amended  by  stat.  30  &  31  Vict.  c.  131. 
(A)  Stat.  18  &  19  Vict.  c.  133.  («)  Pp.  182,  183. 

(A)  Stat.  19  &  20  Vict.  c.  47.  {I)  Stat.  20  &  21  Vict.  c.  14. 

(m)  Stat.  20  &  21  Vict.  c.  40. 

visions  of  the  Bankrupt  Act,  as  to  suspcn-  or  member  thereof,  where   such  liability 

sion    of    commercial    paper:    Alabama    &  must  be  predicated  of  such  judgment  and 

Chattanooga  R.  R.  Co.  V.  Jones,  5  B.  11.97.  execution  returned  unsatisfied,  a  motion 

Where  the  effect  of  granting  a  stay  upon  on  the  part  of  such  corporation  defendant 

a  judgment  against   a  corporation  bank-  to  stay  proceedings  after  judgment  must  be 

rupt  before  execution   returned,  or  setting  denied,    the    corporation    not   being    dis- 

aside    an    execution    issued   thereon,    the  chargeable  under  the  Bankrupt  Act :  Allen 

stockholders  being  personally  responsible,  v.   Soldiers'  Business  Messenger  and  Dis- 

would  be  to  discharge  a  person,  or  officer,  patch  Co.,  4  B.  11.  17G. 


OF    PERSONAL   ANNUITIES,    STOCKS   AND    SHARES.  219 

amended  by  subsequent  acts,(w)  all  of  -which  are  now  repealed  and  con- 
solidated by  the  Companies  Act,  1862, (o)  as  amended  by  the  Companies 
Act,  1867.(2?) 

Under  these  acts  seven  or  more  persons  associated  for  any  lawful  pur- 
pose, may  by  subscribing  their  names  to  a  memorandum  of  association, 
and  otherwise  complying  with  the  requsitions  of  the  acts  in  respect  of 
registration,  form  an  incorporated  company,  with  or  without  limited 
liability.(f/)^  But  no  banking  company  claiming  to  issue  notes  in  the 
United  Kingdom  shall  be  entitled  to  limited  liability  in  respect  of  such 
issue.(r)  Not  more  than  ten  persons  may  carry  on  the  business  of  bank- 
ing as  partners,  unless  they  are  registered  under  this  act,  or  are  formed 
in  pursuance  of  some  other  act  of  *parliament  or  of  letters-  r*2201 
patent ;  and  no  partnership  consisting  of  more  than  twenty 
persons  can  now  be  formed  for  the  purpose  of  carrying  on  any  other 
business  that  has  for  its  object  the  acquisition  of  gain  by  the  partnership 
or  by  the  individual  members  thereof,  unless  it  be  registered  as  a  com- 
pany under  this  act,  or  be  formed  in  pursuance  of  some  other  act  of 
parliament,  or  of  letters-patent,  or  be  a  company  engaged  in  working 
mines  within  and  subject  to  the  jurisdiction  of  the  Stannaries.(s)  The 
liability  of  the  members  of  a  company  formed  under  this  act  may, 
according  to  the  memorandum  of  association,  be  limited  either  to  the 
amount,  if  any,  unpaid  on  the  shares  respectively  held  by  them,  or  to 
such  amount  as  the  members  may  respectively  undertake  by  the  memo- 
randum of  association  to  contribute  to  the  assets  of  the  company  in  the 
event  of  its  being  wound  up.(^)  In  the  former  case,  the  company  is 
said  to  be  limited  by  shares  ;  and  in  the  latter  to  be  limited  by  guarantee. 
And  the  Companies  Act,  1867,  now  provides,  that  the  liability  of  the 
directors  or  managers,  or  managing  director  of  a  limited  company,  may, 
if  so  provided  by  the  memorandum  of  association  or  fixed  by  special 
resolution,  be  unlimited.(w) 

(n)  Stat.  20  &  21  Vict.  c.  80  ;  21  &  22  Vict.  c.  60;  21  &  22  Vict.  c.  91. 
(o)  Stat.  25  &  26  Vict.  c.  89.  (p)  Stat.  30  &  31  Vict.  c.  131. 

{g)  Stat.  25  &  26  Vict.  c.  89,  s.  6.  (r)  Sect.  182. 

(s)  Sect.  4.  (t)  Sect.  7. 

(u)  Stat.  30  &  31  Vict.  c.  131,  ss.  4-8. 


1  The  liability  of  the  stockholders  of  in-  most  generallj'  limited,   either  upon   the 

corporations,  is  in  general  regulated  by  the  amount  the   stockholder   has   subscribed, 

charter,  or  the  general  laws  under  which  or   the  amount  he  has    actually   paid  up 

the  incorporation  has  come  into  existence  ;  towards  the  capital   stock  of  the  corpora- 

this  liability  is  sometimes  absolute  ;   but  tion,  or  is  bound  to  contribute. 


220  OF    INCORPOREAL    PERSONAL   PROPERTY. 

The  memorandum  of  association  of  a  company  limited  by  shares  must 
contain  the  following  things  : — 

1.  The  name  of  the  company  with  the  addition  of  the  word  "limited," 

as  the  last  word  of  such  name. 

2.  The  part  of  the  United   Kingdom  in  which  the  registered  office  of 

the  company  is  proposed  to  be  situate. 

3.  The  object  for  which  the  company  is  to  be  established. 

*■!.  A    declaration,    that    the    liability    of    the    members    is 
^         -■  limited. 

5.  The  amount  of  capital  with  which  the  company  proposes  to  be 
reo-istered,  divided  into  shares  of  a  certain  fixed  amount ;  sub- 
ject  to  the  following  regulations  : 

1.  That  no  subscriber  shall  take  less  than  one  share. 

2.  That  each  subscriber  of  the  memorandum  of  association  shall 

write  opposite  to  his  name  the  number  of  shares  he  takes. (a:) 

When  the  company  is  limited  by  guarantee,  its  memorandum  of  asso- 
ciation must  contain  the  first  three  of  the  above-mentioned  requisites; 
and,  (4),  a  declaration,  that  each  member  undertakes  to  contribute  to  the 
assets  of  the  company,  in  the  event  of  the  same  being  wound  up  during 
the  time  that  he  is  a  member,  or  within  one  year  afterwards,  for  pay- 
ment of  the  debts  and  liabilities  of  the  company  contracted  before  the 
time  at  which  he  ceases  to  be  a  member,  and  of  the  costs,  charges  and 
expenses  of  winding  up  the  company,  and  for  the  adjustment  of  the 
rights  of  the  contributories  amongst  themselves,  such  amount  as  may  be 
required,  not  exceeding  a  specified  amount.(?/) 

If  no  limit  be  placed  on  the  liability  of  the  members  the  company  is 
called  an  unlimited  company,  and  its  memorandum  of  association  must 
contain  only  the  following  things : — 

1.  The  name  of  the  company. 

2.  The  part  of  the  United  Kingdom  in  which  the  registered  office  of 

the  company  is  proposed  to  be  situate. 
[*222]     *3.  The  objects  for  which  the  company  is  to  be  established.(z) 

The  memorandum  of  association  must  bear  the  same  stamp  as  if  it 
were  a  deed,  and  must  be  signed  by  each  subscriber  in  the  presence  of 
and  be  attested  by  one  witness  at  the  least.  When  registered,  it  binds 
the  company  and  the  members  thereof  to  the  same  extent  as  if  each 

(x)  Stat.  25  &  2G  Vict.  c.  89,  s.  8.  (y)  Sect.  9. 

(z)  Sect.  10. 


OF   PERSONAL   ANNUITIES,   STOCKS   AND   SHARES.  222 

member  had  subscribed  his  name  and  affixed  his  seal  thereto,  and  there 
were  contained  in  the  memorandum  a  covenant  on  the  part  of  himself, 
his  heirs,  executors  and  administrators,  to  observe  all  the  conditions  of 
such  memorandum,  subject  to  the  provisions  of  the  act. (a)  No  altera- 
tion can  be  made  by  any  company  in  the  conditions  contained  in  its 
memorandum  of  association ;  except  that  a  company  limited  by  shares 
may  increase  its  capital  by  the  issue  of  new  shares  of  such  amount  as  it 
thinks  expedient,  or  may  consolidate  and  divide  its  capital  into  shares  of 
larger  amount  than  its  existing  shares,  or  convert  its  paid-up  shares  into 
stock  ;{b)  and  except  that  any  company  may,  with  the  sanction  of  a  special ' 
resolution  of  the  company  as  after  mentioned,  and  with  the  approval  of  the 
Board  of  Trade,  change  its  name  ;  but  such  change  will  not  affect  any  of 
the  rights  or  obligations  of  the  company.(c)  And  the  Companies  Act, 
1867,  now  empowers  any  company  limited  by  shares  to  modify  by  special 
resolution  the  conditions  of  its  memorandum  of  association  so  as  to  reduce 
its  capital,  provided  the  sanction  of  the  court  be  obtained.((^)  The  same 
act  also  empowers  any  company  limited  by  shares  to  divide  its  capital  or 
any  part  thereof  into  shares  of  a  smaller  amount  than  originally  fixed  by 
its  memorandum  of  association  ;  provided  that  *the  proportion  r*223'| 
between  the  amount  which  is  paid,  and  the  amount  (if  any) 
which  is  unpaid,  on  each  share  of  reduced  amount,  shall  be  the  same  as 
it  was  in  the  case  of  the  existing  share  or  shares  from  which  the  share  of 
reduced  amount  is  derived. (e) 

The  memorandum  of  association  may  in  the  case  of  a  company  limited 
by  shares,  and  must  in  the  case  of  a  company  limited  by  guarantee  or 
unlimited,  be  accompanied,  when  registered,  by  articles  of  association 
signed  by  the  subscribers  to  the  memorandum  of  association,  and  pre- 
scribing such  regulations  for  the  company  as  the  subscribers  shall  deem 
expedient.  These  articles  must  be  expressed  in  separate  paragraphs 
numbered  arithmetically.  The  act  contains  a  Table  marked  A,  in  the 
first  schedule  thereto,  of  provisions,  all  or  any  of  which  may  be  adopted 
in  the  articles  of  association. (/)  The  regulations  contained  in  this  Table 
will,  if  not  excluded  or  modified  by  the  articles,  be  deemed,  so  far  as 
they  are  applicable,  to  be  the  regulations  of  every  company  limited  by 
shares.(^)  The  articles  of  association  must  be  printed  and  stamped  as 
if  they  were  contained  in  a  deed,  and  must  be  signed  and  attested  in  the 

(a)  Stat.  25  &  26  Vict.  c.  89,  s.  11.  (b)  Sect.  12. 

(c)  Sect.  13.  (d)  Stat.  30  &  31  Vict.  c.  131,  s.  9-20. 

(e)  Stat.  30  &  31  Vict.  c.  131,  s.  121.  (/)  Stat.  25  &  26  Vict.  c.  89,  s.  14. 
Iff)  Sect.  15. 


223 


OF    INCORPOREAL    PERSONAL    PROPERTY. 


same  manner  as  the  memorandum  of  association ;  and  when  registered, 
tliey  bind  the  company  and  the  members  thereof  to  the  same  extent. (A) 
The  memorandum  and  articles,  if  any,  are  to  be  registered  by  the  regis- 
trar of  joint-stock  companies  ;{{)  and  thereupon  the  company  is  incorpo- 
rated, with  power  to  hokl  lands ;  and  a  certificate  of  the  incorporation  of 
any  company  given  by  the  registrar  shall  be  conclusive  evidence  that  all 
the  requisitions  of  the  act  in  respect  of  registration  have  been  complied 
r*oo  n    '^vith.(A-)    No  company  formed  for  the  *purpose  of  promoting  art, 
science,  religion,  charity  or  any  other  like  object,  not  involving 
the  acquisition  of  gain  by  the  company,  or  by  the  individual  members 
thereof,  shall,  without  the   sanction  of  the  Board  of  Trade,  hold  more 
than  two  acres  of  land :  but  the  Board  of  Trade  may,  by  license  under 
the  hand  of  one  of  their  principal  or  assistant  secretaries,  empower  any 
such  company  to  hold  lands  in  such  quantity  and  subject  to  such  condi- 
tions as   they  think  fit.(Z)     All  shares   are  to  be  personal  estate.(w) 
Every  company  is  required  to  keep  a  register  of  its  members  ;(w)  and 
every  company  having  a  capital  divided  into  shares  is  required  to  make 
out  an  annual  list  of  its  members,  with  other  particulars,  and  to  forward 
a  copy  thereof  to  the  registrar  of  joint-stock  companies.(o)     No  notice  of 
any  trust,  expressed,  implied  or  constructive,  is  to  be  entered  on  the 
register. (p)     And  a  certificate  under  the  common  seal  of  the  company, 
specifying  any  shares  or  stock  held  by  any  member,  is  pn'w^c?  facie  evi- 
dence of  his  title  to  the  shares  or  stock  therein  specified. (g)     And  the 
register  of  members  is  primd  facie  evidence  of  any  matters  by  the  act 
directed  or  authorized  to  be  inserted  therein. (r) 

Every  company  is  bound  by  the  act  to  have  a  registered  office,  to 
which  all  communications  and  notices  may  be  addressed. (s)  And  every 
limited  company  must  keep  its  name  painted  or  afiixed  on  the  outside  of 
every  office  or  place  of  business  of  the  company,  in  a  conspicuous  posi- 
tion, in  letters  easily  legible,  and  must  have  its  name  engraven  in  legible 
characters  on  its  seal,  and  must  have  its  name  mentioned  in  legible 
characters  *in  all  notices,  advertisements,  bills,  notes,  endorse- 
ments, checks,  orders  for  money  or  goods  on  behalf  of  the  com- 
pany, and  in  all  bills  of  parcels,  invoices,  receipts  and  letters  of  credit  of 
the  company.(^)     But  associations  not  for  profit  may,  by  license  of  the 


[*22o] 


(A)  Stat.  25  &  2G  Vict.  c.  89,  s. 

(k)  Sect.  18. 

(wi)  Sect.  22. 

(o)  Sect.  26. 

(g)  Sect.  31. 

(«)  Sect.  39. 


10. 


(i)  Sect.  17. 

(/)  Stat.  25  &  26  Vict.  c.  89, 

(n)   Sect.  25. 

(p)  Sect.  30. 

(r)  Sect.  37. 

(/)  Sect.  41. 


s.  21. 


GF    PERSONAL   ANNUITIES,    STOCKS   AND    SHARES.  225 

Board  of  Trade,  be  registered  with  limited  liability,  without  the  addition 
of  the  word  limited  to  their  names.(w)  Every  limited  company  is  re- 
quired to  keep  a  register  of  all  mortgages  and  charges  specifically  affect- 
ing the  property  of  the  company, (a;)  And  every  limited  banking 
company,  and  every  insurance  company,  and  deposit,  provident  or 
benefit  society  under  the  act,  is  required  before  it  commences  business, 
and  afterwards  on  the  the  first  Monday  in  February  and  the  first  Monday 
in  August  in  every  year,  to  make  a  statement  of  its  capital,  liabilities 
and  assets  in  a  given  form,  to  be  put  up  in  a  conspicuous  place  in  the 
office  of  the  company.(7/) 

Subject  to  the  provisions  of  the  act,  and  to  the  conditions  contained  in 
the  memorandum  of  association,  any  company  formed  under  the  act  may, 
in  general  meeting,  from  time  to  time,  by  passing  a  special  resolution  in 
manner  after  mentioned,  alter  all  or  any  of  the  regulations  of  the  com- 
pany contained  in  the  articles  of  association,  or  in  the  table  marked  A. 
in  the  first  schedule,  where  such  table  is  applicable  to  the  company ;  or 
make  new  regulations  to  the  exclusion  of  or  in  addition  to  all  or  any  of 
the  regulations  of  the  company  ;  and  any  regulations  so  made  by  special 
resolution  shall  be  deemed  to  be  regulations  of  the  company  of  the  same 
validity  as  if  they  had  been  originally  contained  in  the  articles  of  asso- 
ciation, and  shall  be  subject  in  like  manner  to  be  altered  or  modified  by 
any  subsequent  *special  resolution. (s)  A  resolution  passed  by  r>i:oo(:?-| 
a  company  under  the  act  is  deemed  to  be  special  whenever  a 
resolution  has  been  passed  by  a  majority  of  not  less  than  three-fourths 
of  such  members  of  the  company  for  the  time  being  entitled,  according 
to  the  regulations  of  the  company,  to  vote  as  may  be  present,  in  person 
or  by  proxy  (in  cases  where  by  the  regulation  of  the  companies  proxies 
are  allowed),  at  any  general  meeting  of  which  notice  specifying  the  inten- 
tion to  propose  such  resolution  has  been  duly  given ;  and  such  resolution 
has  been  confirmed  by  a  majority  of  such  members  for  the  time  being 
entitled,  according  to  the  regulations  of  the  company,  to  vote  as  may  be 
present,  in  person  or  by  proxy,  at  a  subsequent  general  meeting,  of 
which  notice  has  been  duly  given,  and  held  at  an  interval  of  not  less 
than  fourteen  days,  nor  more  than  one  month  from  the  date  of  the  meet- 
ing at  which  such  resolution  was  first  passed  :  At  any  such  meeting, 
unless  a  poll  is  demanded  by  at  least  five  members,  a  declaration  of  the 
chairman  that  the  resolution  has  been  carried  shall  be  deemed  conclusive 
evidence  of  the  fact,  without  proof  of  the  number  or  proportion  of  the 

(2i)  Stat.  30  &  31  Vict.  c.  131,  s.  23.  (z)  Stat.  25  &  26  Vict.  c.  89,  s.  43. 

(y)  Sect.  44.  (z)  Sect.  50. 


226  OF  INCORPOREAL  PERSONAL  PROPERTY. 

votes  recorded  in  favor  or  apjainst  the  same.  Notice  of  any  such  meet- 
ing shall  be  deemed  to  be  duly  given,  and  the  meeting  to  be  duly  held, 
whenever  such  notice  is  given  and  meeting  held  in  manner  prescribed  by 
the  regulations  of  the  company.  In  computing  the  majority  when  a 
poll  is  demanded,  reference  shall  be  had  to  the  number  of  votes  to  which 
each  member  is  entitled  by  the  regulations  of  the  company. (a)  A  copy 
of  every  special  resolution  must  be  printed  and  registered, (6)  and  must 
be  annexed  to  or  embodied  in  every  copy  of  the  articles  of  association 
that  may  be  issued  after  the  passing  of  such  resolution.((?) 


r^.o.^T-i        -^Contracts  on  behalf  of  any  company  may  be  made  as  fol- 


*( 
lows  : — 


(1.)  Any  contract  which,  if  made  between  private  persons  would  be 
by  law  required  to  be  in  writing,  and  if  made  according  to 
English  law  to  be  under  seal,  may  be  made  on  behalf  of  the 
company  in  writing  under  the  common  seal  of  the  company, 
and  such  contract  may  be  in  the  same  manner  varied  or  dis- 
charged. 

(2.)  Any  contract  which,  if  made  between  private  persons  would  be 
by  law  required  to  be  in  writing  and  signed  by  the  parties  to 
be  charged  therewith,  may  be  made  on  behalf  of  the  company 
in  writing  signed  by  any  person  acting  under  the  express  or 
implied  authority  of  the  company,  and  such  contract  may  in 
the  same  manner  be  varied  or  discharged. 

(3.)  Any  contract,  which,  if  made  between  private  persons  would  by 
law  be  valid,  although  made  by  parol  only  and  not  reduced 
into  writing,  may  be  made  by  parol  on  behalf  of  the  company 
by  any  person  acting  under  the  express  or  implied  authority 
of  the  company,  and  such  contract  may  in  the  same  way  be 
varied  or  discharged,  (c?) 

Shares  in  joint  stock  companies  are  transferred  by  deed  registered  at 
the  office  of  the  company.  But  the  Companies  Act,  1867,  provides,  in 
the  case  of  a  company  limited  by  shares,  for  the  issue  of  share  warrants 
with  respect  to  shares  fully  paid  up,  or  with  respect  to  stock  ;{e)  and 
these  warrants  entitle  the  bearer  to  the  shares  or  stock  specified  in  them, 
and  such  shares  or  stock  may  be  transferred  by  delivery  of  the  share 
warrant. (/) 

(a)  Stat.  25  &  2G  Vict.  c.  89,  s.  51.  (b)  Sect.  53. 

(c)  Sect.  54.  (d)  Stat.  30  &  31  Vict.  c.  131    s.  37. 

(e)  Sects.  27-33.  (/)  Sect.  28. 


OF    PERSONAL   ANNUITIES,    STOCKS   AND   SHARES.  228 

*Provision  is  made  for  the  winding-up  of  Joint  Stock  Compa-  r*99g-| 
nies  either  by  the  court(^)  or  voluntarily  ;(A)  and  if  volun- 
tarily, the  winding-up  may  by  the  order  of  the  court  be  subject  to  its 
supervision. (i)  The  court  to  which  this  jurisdiction  is  given  is  the 
Court  of  Chancery,  except  in  the  case  of  mines  subject  to  the  jurisdic- 
tion of  the  Stannaries  ;  but  where  the  Court  of  Chancery  makes  an  order 
for  winding  up  a  company  under  the  act,  it  may,  if  it  think  fit,  direct  all 
subsequent  proceedings  for  Avinding  up  the,same  to  be  had  in  the  County 
Court.(A:)  The  winding-up  is  effected  by  liquidators  appointed  for  that 
purpose,  and  who  if  appointed  by  the  court  are  styled  official  liquida- 
tor8.(Z)  All  persons  liable  to  contribute  to  the  assets  of  a  company 
under  the  act,  in  the  event  of  its  being  wound  up,  are  called  contributo- 
ries.(w)  The  liability  of  contributories  is  regulated  by  the  following 
rules  :(n) — 

1.  No  past  member  shall  be  liable  to  contribute  to  the  assets  of  the 

company,  if  he  has  ceased  to  be  a  member  for  a  period  of  one 
year  or  upwards  prior  to  the  commencement  of  the  winding-up : 

2.  No  past  member  shall  be  liable  to  contribute  in  respect  of  any  debt 

or  liability  of  the  company  contracted  after  the  time  at  which 
he  ceased  to  be  a  member : 

3.  No  past  member  shall  be  liable  to  contribute  to  the  assets  of  the 

company  unless  it  appears  to  the  court  that  the  existing  mem- 
bers are  unable  to  satisfy  the  contributions  required  to  be  made 
by  them  in  pursuance  of  the  act : 

4.  In  the  case  of  a  company  limited  by  shares,  no  *contribu-    r*2291 

tion  shall  be  required  from  any  member  exceeding  the 
amount,  if  any,  unpaid  on  the  shares  in  respect  of  which  he  is 
liable  as  a  present  or  past  member: 

5.  In  the  case  of  a  company  limited  by  guarantee,  no  contribution 

shall  be  required  from  any  member  exceeding  the  amount  of 
the  undertaking  entered  into  on  his  behalf  by  the  memorandum 
of  association : 

6.  Nothing  in  the  act  contained  shall  invalidate  any  provision  con- 

tained in  any  policy  of  insurance  or  other  contract,  whereby 
the  liability  of  individual  members  upon  any  such  policy  or 

(g)  Stat.  25  &  26  Vict.  c.  89,  ss.  79-128.     See  also  stat.  30  &  31  Vict.  c.  131,  s.  40. 

{h)  Stat.  25  &  26  Vict.  c.  89,  ss.  129-146. 

(t)  Sects.  147-152. 

(k)  Stats.  25  &  26  Vict.  c.  89,  s.  81  ;  30  &  31  Vict.  c.  131,  ss.  41,  42. 

(l)  Stat.  25  &  26  Vict.  c.  89,-ss.  92-97,  133-144. 

(m)  Sect.  74.  («)  Sect.  38. 


229  OF  INCORPOREAL  PERSONAL  PROPERTY. 

contract  is  restricted,  or  whereby  the  funds  of  the  company 
are  alone  made  liable  in  respect  of  such  policy  or  contract : 
7.  No  sum  due  to  any  member  of  a  company,  in  his  character  of  a 
member,  by  way  of  dividends,  profits  or  otherwise,  shall  be 
deemed  to  be  a  debt  of  the  company  payable  to  such  member 
in  a  case  of  competition  between  himself  and  any  other  creditor 
not  being  a  member  of  the  company ;  but  any  such  sum  may 
be  taken  into  account  for  the  purposes  of  the  final  adjustment 
of  the  rights  of  the  contributories  amongst  themselves. 

Acts  have  since  been  passed  to  enable  joint-stock  companies  carrying 
on  business  in  foreign  countries  to  have  official  seals  to  be  used  in  such 
countries, (o)  and  to  enable  certain  companies  to  issue  mortgage  deben- 
tures founded  on  securities  upon  or  affecting  land,  and  to  make  provi- 
sion for  the  registration  of  such  mortgage  debenture  and  securities.(  j^) 

*Shares  in  joint  stock  companies  are  not  goods^  wares  or  mer- 
•-  "  -^  chandise  within  the  17th  section  of  the  Statute  of  Frauds ;  so 
that  they  do  not  require  a  written  memorandum  for  a  contract  for  their 
sale,  when  the  value  exceeds  10?.,  and  the  buyer  does  not  accept  and 
receive  any  part,  nor  give  something  in  earnest  to  bind  the  bargain  or  in 
part-payment. (5)  And  such  shares  Avere  not  considered  to  be  stock 
within  the  meaning  of  the  Stock  Jobbing  Act  above  mentioned  and  now 
repealed.(r)  But  the  sale  of  shares  in  joint  stock  banks  is  now  void  un- 
less the  contract  shall  set  forth  in  writing  the  numbers  of  the  shares  in 
the  registry  of  the  company,  or,  where  there  is  no  register  by  distin- 
guishing numbers,  then  the  names  of  the  registered  proprietors  of  the 
shares  at  the  time  of  making  the  contract. (s) 

Several  acts  of  parhament  have  been  passed  for  the  encouragement 
of  friendly  societies,  for  the  mutual  relief  of  their  members  and  their 
families  in  case  of  sickness,  old  age,  death,  or  other  contingencies  ;(0  all 
of  which  are  now  consolidated   into    one  act.(w)     The  rules   of   these 

(o)  Stat.  27  Vict.  c.  19.  (p)  Stat.  28  &  29  Vict.  c.  78. 

(q)  Humble  v.  Mitcliell,  11  Ad.  &  E.  205  (E.  C.  L.  R.  vol.  39) ;  Kniglit  v.  Barber,  IG 
M.  &  W.  66  ;  Bowlby  v.  Bell,  3  C.  B.  284  (E.  C.  L.  R.  vol.  54).     See  ante,  p.  40. 

(r)  Hewitt  v.  Price,  4  M.  &  G.  355  (E.  C.  L.  R.  vol.  43) ;  Williams  v.  Tyre,  18  Beav. 
366  ;  ante,  p.  203. 

(s)  Stat.  30  Vict.  c.  29. 

(t)  Stat.  10  Geo.  IV.  c.  56,  amended  by  4  &  5  Will.  IV.  c.  40  ;  3  &  4  Vict.  c.  73 ;  9  & 
10  Vict.  c.  27 ;  13  &  14  Vict.  c.  115  ;  15  &  16  Vict.  c.  65  ;  16  &  17  Vict.  c.  123  ;  17  &  18 
Vict.  c.  101. 

(u)  Stat.  18  &  19  Vict.  c.  63,  amended  by  stats.  21  &  22  Vict.  c.  101 ;  23  &  24  Vict. 
c.  58 ;  30  k  31  Vict.  c.  117,  and  32  &  33  Vict,  c.  61. 


OF    PERSONAL   ANNUITIES,    STOCKS   AND    SHARES.  230 

societies  are  required  to  be  certified  by  the  registrar  of  friendly  societies, 
and  in  whose  custody  a  transcript  of  the  rules  of  every  friendly  society 
is  now  required  to  be  kept. (a;)     And  it  is  now  provided  that  *the    r*23ll 
registrar  of  friendly  societies  shall  not  grant  any  certificate  to 
any  society  assuring  to  any  member  thereof  a  certain  annuity  or  super- 
annuation, deferred  or  immediate,  unless  the  table  of  contributions  pay- 
able for  such  kind  of  assurance  shall  have  been  certified  under  the  hand 
of  the  actuary  to  the  commissioners  for  the  reduction  of  the  national 
debt,  or  by  an  actuary  to  some  life  assurance  company  in  London,  Edin- 
burgh, or  Dublin  who  shall  have  exercised  the  profession  of  actuary  for 
at  least  five  years. (?/)     On  the  death  or  removal  of  any  trustee  of  one  of 
these  societies,  the  whole  property  of  the  society  vests  in  the  succeeding 
trustee  for  the  same  estate  and  interest  as  the  former  trustee  had  therein, 
and  subject  to  the  same  trusts,  without  any  assignment  or  conveyance 
T/hatever,   except  the  transfer  of  stock  and   securities  in   the   public 
funds. (2)     And  on  the  death,  bankruptcy  or  insolvency  of  any  officer  of 
any  such  society,  or  on  any  execution  issuing  against  him,  or  on  his 
making  any  assignment  or  conveyance  for  the  benefit  of  his  creditors, 
the  money  or  effects  in  his  hands  belonging  to  the  society  are  to  be  paid 
over  and  delivered  to  the  society  before  any  other  of  his  debts  are  paid. (a) 
Acts  of  parliament  have  also  been  passed  to  legalize  the  formation  of 
industrial  and  provident  societies  for  carrying  on  trades  or  handicrafts  in 
common, (6)  and  many  of  the  provisions  which  relate  to  friendly  societies 
apply  also  to  these  institutions. (c)      Loan    societies  are  regulated  by 
another  act  of  parliament,  which,  after  having  been  long  periodically  con- 
tinued, is  now  made  perpetual. ((^)     Other  acts  of  *parliament    r^ooQ-i 
have  recently  been  passed  for  the  regulation  of  savings  banks  ;(e)^ 
and  particularly  for  the  establishment  of  savings  banks  in  connection 
with  the  post-office, (/) — banks  which,  having  the  security  of  a  govern- 
ment guarantee,  are  a  great  boon  to  the  poorer  classes. 

(x)  Stat.  18  &  19  Vict.  c.  63,  s.  26.  A  transcript  of  the  rules  was  formerly  required 
to  be  enrolled  with  the  clerk  of  the  peace.     Stat.  4  &  5  Will.  IV.  c.  40,  s.  4. 

{y)  Stat.  18  &  19  Vict.  c.  63,  s.  26. 

(z)   Sect.  18.  (a)  Sect.  23. 

(6)  Stat.  15  &  16  Vict.  c.  31,  amended  by  stats.  17  &  18  Vict.  c.  25,  and  19  &  20  Vict. 
c.  40  ;  repealed  and  consolidated  by  stat.  25  &  26  Vict.  c.  87,  amended  by  stat.  30  &  31 
Vict.  c.  117. 

(c)  Stats.  25  &  26  Vict.  c.  87,  s.  15 ;  30  &  31  Vict.  c.  117,  s.  3. 

{d)  Stat.  3  &  4  Vict.  c.  110,  made  perpetual  by  stat.  26  &  27  Vict.  c.  56. 

(e)  Stat.  26  &  27  Vict.  c.  87. 

(/)  Stats.  24  Vict.  c.  14;  26  Vict.  c.  14,  and  32  &  33  Vict.  c.  59, 

1  For  statutory  regulations  resembling  respecting  Savings  Institutions  and  Loan 
those  spoken  of  in  the  text,  see  the  acts     Companies,  Purd.  Dig.  (1861),  p.  106. 


232  OF   INCORPOREAL   PERSONAL   PROPERTY. 

An  act  of  parliament  also  exists  for  the  regulation  of  benefit  building 
Societies.((/)'  The  funds  of  these  societies  are  raised  bj  monthly  con- 
tributions of  the  members,  which  must  not  exceed  20s.  per  share,  and 
by  fines  for  non-payment.  These  shares  must  not  exceed  the  value  of 
150/.  each  ;  but  any  member  may  hold  more  than  one  share.(7i)  When 
the  amount  of  the  shares  has  been  realized,  the  money  is  divided  amongst 
the  members,  and  the  society  is  dissolved.  Such  members,  however,  as 
may  wish  to  buy  land  or  to  build,  may  receive  the  amount  of  their  shares 
in  advance  on  payment  of  an  additional  subscription  by  way  of  interest, 
and  also  on  payment  of  a  bonus  for  the  advance,  which  of  course  is 
deducted  from  the  amount  of  the  share  advanced.  This  bonus  is  usually 
determined  by  competition  amongst  the  members,  the  shares  to  be  paid 
in  advance  being  put  up  by  auction  by  the  society ;  and  the  subscrip- 
tions and  fines  to  become  due  in  respect  of  the  advanced  shares  are  then 
secured  to  the  society  by  the  purchasers,  by  mortgage  of  land  or  houses 
of  sufficient  value.(«)  These  mortgages  are  not  *liable  to  stamp 
L'iiodJ  (-1^^^,^^^^  provided  they  be  made  by  a  member  for  securing  the 
repayment  to  the  society  of  money  not  exceeding  five  hundred  pounds ; 
but  in  other  cases  the  stamp  duty  now  attaches.(/)  These  mortgages 
were  also  exempt  from  any  of  the  forfeitures  or  penalties  formerly  in 
force  against  us\xrj.{inf    And  a  receipt  for  the  moneys  secured,  endorsed 

(g)  Stat.  6  &  1  Will.  IV.  c.  32. 

{h)  Morrison  v.  Glover,  4  Ex.  Rep.  430. 

(i)  See  Moseley  v.  Baker,  6  Hare  87  ;  3  De  G.,  M.  &  G.  1032  ;  Doe  d.  Morrison  v. 
Glover,  15  Q.  B.  103  (E.  C.  L.  R.  vol.  69) ;  Seagrave  v.  Pope,  1  De  G.,  M.  &  G.  783; 
Fleming  v.  Self,  Kay  .518;  3  De  G.,  M.  &  G.  997  ;  Farmer  v.  Smith,  4  H.  &  N.  19G; 
Sparrow  v.  Farmer,  26  Beav.  511  ;  Smith  v.  Pilkington,  1  De  G.,  F.  &  J.  120. 

{k)  Walker  v.  Giles,  6  C.  B.  662  (E.  C.  L.  R.  vol.  GO)  ;  Williams  v.  Hayward,  22 
Beav.  220. 

[1)  Stat.  31  &  32  Vict.  c.  124,  s.  11.  (m)  Stat.  6  &  7  Will.  IV.  c.  32,  s.  2. 

1  An  act  of  the  legislature  of  Pennsyl-  and  provisos  therein   mentioned.     By  an 

vania,  passed  the  22d  day  of  April,  1850,  act  of  the   3d  of  April,  1851,  the    above 

empowers,  "  any  number  of  persons,  citi-  provisions  are   extended   to   Montgomery 

zens  of  the  city  and  county  of  Philadelphia,  county.     By  the  Act  of  the  2Ist  of  April, 

and  the  counties  of  Schuylkill  and  Berks,"  1852,    they    are     extended    to    Delaware 

"  who  are  associated,  or  who  mean  to  as-  county ;  and    by  the  Act  of  the   14th   of 

sociate''    "for    the    purpose    of    forming  April,    1853,  they  are   extended   to   Alle- 

rautual   savings  fund,  land  and  building  gheny  county ;    and   by  subsequent  stat- 

associations,'  to  make  application  for  in-  utes,   the    act   is    still    further    extended  : 

corporation    "to    the    Court   of  Common  Purd.  Dig.  (1861),  p.  129. 

Pleas  of  the  proper  county,  in  which  said  ^  But  such  a  provision,  will  not  exoner- 

corporation  or  body  politic  in  law,  is  in-  ate  all  contracts  made  by  such  associations 

tended  to  be  situated  ;"  and  the  said  courts  with  their  members,  from  the  operation  of 

are  thereby  authorized  to  incorporate  the  the  statute  relating  to  usury  :  Savings  Bk. 

said  associations,  •^nder  the  stipulations  v.  Wilcox,  24  Conn.  147  ;  Martin  v.  Nash- 


OF    PERSONAL   ANNUITIES,    STOCKS    AND    SHARES.  233 

by  the  trustees  of  the  society  upon  any  such  mortgage,  vests  the  estate 
comprised  in  the  security  in  the  person  entitled  to  the  equity  of  redemp- 
tion, without  any  reconveyance.(w)  Under  cover  of  the  Building  Socie- 
ties Act,  many  societies  called  freehold  land  societies  have  been  established 
for  the  purpose  of  buying  freehold  land  and  selling  it  again  in  lots  to  the  * 
different  members  ;  but  these  societies  are  not  within  the  scope  of  the 
building  and  friendly  societies  acts,  and  can  only  be  certified  as  such  by 
the  concealment  of  their  real  object.(o) 

An  act  has  also  been  passed  for  facilitating  the  erection  of  dwelling- 
houses  for  the  laboring  classes,(|))  under  which  any  number  of  persons, 
not  less  than  six,  may  by  subscribing  articles  of  association  form  them- 
selves into  a  company  for  the  purposes  of  the  act.  The  articles  are  to 
be  in  a  given  form,  and  to  be  registered  by  the  registrar  of  joint  stock 
companies.  And  the  Companies  Clauses  Consolidation  Act,  1845,  is 
incorporated  into  the  act,  the  articles  of  association  being  deemed  the 
special  act. 

The  provisions  above  referred  to  for  charging  the  *stock  of   r^Qg  n 
any  debtor  with  the  payment  of  any  judgment  debt,(^)  extend 
to  stock  and  shares  in  any  public  company  in  England,  whether  incor- 
porated or  not.(r) 

(n)  Stat.  6  &  7  Will.  IV.  c.  .32,  s.  5 ;  Prosser  v.  Price,  28  Beav.  G8  ;  Pearce  v.  Jack- 
son, Law  Rep.  3  Ch.  Ap.  576. 

(o)  See  Grimes  v.  Harrison,  26  Beav.  435  ;  Hughes  v.  Layton,  Q.  B.,  10  Jur.  N.  S.  513. 

{p)  Stat.  IS  &  19  Vict.  c.  132.  See  also  stat.  29  Vict.  c.  28  ;  30  Vict.  c.  28,  and  31 
&32  Vict.  c.  130. 

[q)   Ante,  p.  206. 

(r)  Stat.  1  &  2  Vict.  c.  110,  s.  14.  See  Nicholls  v.  Rosewarne,  6  C.  B.  N.  S.  480  (E.  C. 
L.  R.  vol.  95). 


ville  Building   Association,   2   Cold.   418.  it   is   declared,   that  the   true   intent  and 

In  Pennsylvania    it   has    been    held,  that  meaning  of  the  acts  of  the  legislature,  in 

building  associations   cannot   recover  on  relation  to   building  associations   is,  that 

their  mortgage  loans,  more  than  the  sum  premiums   taken  by  the  said  associations 

loaned,  with   the  actual  interest  thereon:  should  not  be  deemed  usurious. 
Houser  v.  Hermann  Building  Association,         See  also  further  on  the  subject  of  build- 

41  Penn.   St.  478;  Denny  f.  West  Phila-  ing  associations,  the  following  decisions 

delphia  Association,  39  Id.  154  ;  Reiser  v.  supporting  the  doctrine  stated  in  the  text : 

Saving  Fund,  Id.  137;  and  this  judgment  Poraeroy    v.    Ainsworth,     22     Barb.    118; 

has  been  reiterated  in  McGrath  v.  Haniil-  Citizens'     Mutual     Loan     Association    v. 

ton    Savings    and    Loan    Association,    44  Webster,  25  Id.  263;  West  Winstead  Saving 

Penn.  St.  385,  decided  subsequently  to  the  Bank  v.  Ford,  27  Conn.  282. 
Act  of  1859,  in  the  eighth  section  of  which 
19 


234  OF  INCORPOREAL  PERSONAL  PROPERTY. 

The  prerogative  of  the  crown  in  the  grant  of  letters-patent  is  fre- 
quently exercised  not  only  for  the  incorporation  of  joint  stock  companies, 
but  also  for  conferring  on  private  individuals  certain  exclusive  rights 
and  privileges.  These  rights,  called  patents  from  the  letters-patent  which 
confer  them,  will  be  considered  in  the  next  chapter. 


♦CHAPTER   II.  [*235] 

OF   PATENTS   AND    COPYRIGHTS. 

A  PATENT  is  the  name  usually  given  to  a  grant  from  the  crown,  by  letters- 
patent,  of  the  exclusive  privilege  of  making,  using,  exercising  and  vending 
some  new  invention.     The  granting  of  such  letters-patent  is  an  ancient 
prerogative  of  the  crown,  a  prerogative  which  remains  unaffected  by  the  ' 
Patent  Law  Amendment  Act,  1852. (a)     In  the  reign  of  Queen  Elizabeth 
this  prerogative  was  stretched  far  beyond  its  due  limits,  and  the  mono- 
polies thus  created  formed  one  of  the  grievances  which  King  James,  her 
successor,  was  at  last  obliged  to  remedy.     Accordingly  by  a  statute 
passed  in  the"  twenty-first  year  of  his  reign,  and  commonly  called  the 
Statute  of  Monopolies,(6)  it  was  declared  and  enacted  that  all  such 
monopolies  were  altogether  contrary  to  the  laws  of  this  realm,  and   so 
were  and  should  be  utterly  void  and  of  none  effect,  and  in  no  wise  put  in 
use  or  execution.     In  this  statute,  however,  there  are  certain  exceptions, 
and  particularly  one  on  which  the  modern  law  with  respect  to  patents 
maybe  said  to  be  founded.     This  exception  is  as  follows:  "Provided 
also   and  be  it  declared  and  enacted,  that  any  declaration  before  men- 
tioned shall  not  extend  to  any  letters-patent  and  grants  of  privilege  for 
the  term  of  fourteen  years  or  under,  hereafter  to  be  made,  of  the  sole 
working  or   making  of   any  manner  of  new  manufactures  within  this 
realm,  to  the  true  and  first  inventor  and  inventors  of  such  manufactures, 
which  others  at  the  time  of  making  such  letters-patent  and  *grants    r*236'| 
shall  not  use,  so  also  they  be  not  contrary  to  the  law  or  mischiev- 
ous to  the  state,  by  raising  prices  of  commodities  at  home,  or  hurt  of 
trade,  or  generally  inconvenient;  the  said  fourteen  years  to  be  accounted 
from  the  date  of  the  first  letters-patent  or  grant  of  such  privilege  here- 
after to  be  made:  but  that  the  same  shall  be  of  such  force  as  they  should 
be  if  this  act  had  never  been  made,  and  of  none  other."(c) 

It  will  be  seen  that  the  granting  of  letters-patents  is  not  expressly 
warranted  by  this  statute;  but  that  it  merely  reserves  to  such  letters- 
patent  as  fall  within  the  terms  of  the  exception,  such  force  as  they  should 

{a)  Stat.  15  &  16  Vict.  c.  93 ;  see  sect.  16.  (i)  Stat.  21  Jac.  I.  c.  3. 

(c)  Stat.  21  Jac.  I.  c.  3,  s.  6. 


236  OF  INCORPOREAL  PERSONAL  PROPERTY. 

have  bad   if  the  act  had  never  been  made,  and  none  other  force.     As, 
however,  all  grants  of  exclusive  privilege  by  letters-patent,  which  do  not 
fall  within  this  exception,  and  some  others  of  little  importance,  are  now 
rendered  void  by  the  statute,   the  construction  of  this  exception  has 
become  a  matter  of  great   practical   importance.     And,  first,  the  term 
must  hefourteeyi  years  from  the  date  of  the  letters-patent,  or  under;  and 
the  full  term  of  fourteen  years  is  usually  granted.     But  it  is  now  pro- 
vided, that  all  letters-patent  for  inventions,  granted  under  the  provisions 
of  the  Patent  Law  Amendment  Act,  1852,  shall  be  made  subject  to  the 
condition  that  the  same  shall  be  void,  and  that  the  powers  and  privileges 
thereby  granted  shall  cease,  at  the  expiration  of  three  and  seven   years 
respectively  from  the  d'ate  thereof,  unless  there  be  paid  before  the  expira- 
tion of  the  said  three  and  seven  years  respectively,  certain  stamp  duties 
mentioned  in  the  act,  namely,  50?.  stamp  duty  before  the  expiration  of 
the  third  year,  and  100?.  stamp  duty  before  the  expiration  of  the  seventh 
year.(tZ)     These  payments  appear  high,  but  they  are  a  great  improve- 
ment on   the  old  law,  under  which  heavy  fees  and  duty  were  payable 
*on  taking  out  every  patent ;  whereas  now,  if  a  patent  prove  useless, 
*-  '^     -'it  may  be  discontinued,  and  the  payment  saved,     liy  a  modern 
act  of  p!irliament,(e)  a  prolongation  of  the  term  granted  by  the  original 
letters-patent  may  be  granted,  either  to   the  original  grantor  or  to  his 
assignee,(/)  for  a  term  not  exceeding  seven  years  after  the  expiration  of 
the  first  term  in  case  the  Judicial  Committee  of  the  Privy  Council  shall, 
upon  proper  application,  report  to  her  Majesty,  that  such  further  exten- 
sion of  the  term  should  be  granted.     And  if  such  further  period  of 
seven    years  can  be  shown  to  be  insufficient  for   the  reimbursement 
and  remuneration  of  the  expense  and  labor  incurred  in  perfecting  the 
invention,  then,  by  a  subsequent  statute,(,9)  the  crown  may  grant  to  the 
inventor,  or  his  assignee,  an  extension  of  the  patent  for  any  time  not 
QXCQdiWwg  fourteen  years. ^ 

{d)  Stat.  16  &  17  Vict.  c.  5,  3.  2  ;  Williams  v.  Frost,  28  Bear.  93. 

(e)  Stat.  5  &  6  Will.  IV.  c.  83,  s.  4,  amended  2  &  3  Vict.  c.  67  ;  and  extended  by  stats. 

15  &  16  Vict.  c.  83,  s.  40,  and  16  &  17  Vict  c.  115,  s.  7. 

(/)  Russell  V.  Ledsam,  14  M.  &  W.  574;  affirmed,  10  M.  &  W.  633  ;  1  H.  of  L.  Cases 
687. 

{g)  Stat.  7  &  8  Vict.  c.  69,  ss.  2,  4,  continued  by  stats.  15  &  10  Vict.  c.  83,  s.  40,  and 

16  &  17  Vict.  c.  115,  s.  7;    In  Re  Norton's  Patent,  P.  C,    9  Jur.  N.  S.  419;   11  W.  R. 
720;  Re  Hill's  Patent,  P.  C,  9  Jur.  N.  S.  1209  ;  12  W.  R.  25. 

1  The  acts  of  Congress  in  relation  to  pat-  that  day.     And   by  the  last  section  of  an 

ents,    which    had    been    enacted   prior   to  act  entitled  "  An  Act  to  revise,  consolidate 

the   4th  of  July,   1836,  were   repealed  by  and  amend  the  statutes  relating  to  patents 

the  last  section  of  the  act  approved   on  and  copyrights,  approved  on  the  eighth  of 


OF  PATENTS  AND  COPYRIGHTS. 


237 


Secondly,  the  patent  must  be  for   "new  manufactures   within  this 
realm,  which  others  at  the  time  of  making  such  letters-patent  and  grants 


July,  1870,  Statutes  at  Large  (1869-1870), 
p.  198,  the  said  act  of  the  fourth  of 
July  1836,  and  all  other  acts  relating  to 
patents  and  copyrights,  as  enumerated  in 
the  last  section  of  the  said  act  of  1870, 
were  repealed.  This  last  act,  was  the  re- 
sult of  an  effort  to  condense  or  codify 
under  one  single  title,  all  the  laws  of  the 
United  States  on  the  subject  of  patents 
and  copyrights,  and  the  general  features 
of  those  laws  as  existing  before  the  pass- 
age of  the  latter  act,  have  been  therein 
re-enacted,  so  that  its  provisions  may  be 
regarded  as  substantially  the  same  as 
those  contained  in  the  former  laws  of  the 
United  States  on  these  subjects. 

By  the  twenty-fourth  section  of  this 
act,  it  is  enacted  "  that  any  person  who 
has  invented  or  discovered  any  new  and 
useful  art,  machine,  manufacture,  or 
composition  of  matter,  or  any  new  or 
useful  improvement  thereof,  not  known 
or  used  by  others  in  this  country,  and 
not  patented,  or  described  in  any  printed 
publication  in  this  or  any  foreign  coun- 
try, before  his  invention  or  discovery 
thereof,  and  not  in  public  use  or  on  sale 
for  more  than  two  years  prior  to  his 
application,  unless  the  same  is  proved 
to  have  been  abandoned,  may  upon  pay- 
ment of  the  duty  required  by  law,  and 
other  due  proceedings  had,  obtain  a 
patent." 

The  twenty-fifth  section  of  this  act  pro- 
vides, that  an  inventor  shall  not  be  debarred 
of  his  right  to  a  patent  by  reason  of  a 
prior  patent  for  the  discovery  or  invention 
in  a  foreign  country,  provided  that  the 
same  has  not  been  introduced  into  the 
United  States  for  more  than  two  years 
previous  to  his  application  for  a  patent, 
and  that  the  patent  shall  expire  at  the 
same  time  with  the  foreign  patent,  or  in 
case  of  there  being  more  than  one  foreign 
patent,  with  the  expiration  of  that  one 
having  the  shortest  time  to  run,  but  in  no 
case  to  exceed  the  limitation  of  seventeen 
years,  which  by  the  twenty-second  section 


of  said  act  is  fixed  upon  as  the  period 
during  which  a  patent  shall  run.  The 
"due  proceedings"  for  the  obtaining  of  a 
patent  prescribed  by  said  act,  are  contained 
in  sections  twenty-six  to  thirty-four  inclu- 
sive, wherein  the  mode  of  making  claim 
therefor  is  regulated,  and  the  rules  in  rela- 
tion to  the  certainty  of  specification  neces- 
sary to  the  perfecting  of  a  claim  for  a 
patent  presented  ;  and  a  schedule  of  the  offi- 
cial charges  is  contained  in  the  sixty-eighth 
section  of  said  act ;  but  no  patent  is  to  be 
held  void  on  account  of  previous  use  in  a 
foreign  countrj',  if  the  patentee  believed 
himself  to  be  the  original  and  first  inven- 
tor and  discoverer,  if  it  had  not  been 
patented  or  described  in  a  printed  publi- 
cation :  sec.  62  ;  and  patents  granted 
prior  to  the  second  of  March,  1861,  may 
be  extended  for  the  period  of  seven  years 
and  to  have  the  same  effect  as  if  origin- 
ally granted  for  twenty-one  years,  upon 
terms  therein  prescribed  :  sec.  67. 

In  case  of  the  death  of  the  inventor  en- 
titled to  a  patent,  it  is  to  be  issued  to  his 
administrator  or  executor,  in  trust  for  his 
heirs,  provided  the  decedent  has  made  no 
otherprovisionbyhiswill:  sec. 35.  Butfau- 
less  the  word  "patented,"  together  with 
the  day  and  year  the  patent  was  granted, 
is  marked  upon  the  thing  patented,  or  when 
this  cannot  be  done,  on  account  of  the  char- 
acter of  the  article,  a  label  containing  the 
same,  attached  to  a  package  of  the  said 
articles,  no  damages  can  be  recovered  for 
the  use  thereof,  unless  upon  proof  of  use 
after  prior  actual  notice. 

By  the  seventy-first  section  of  the  same 
act,  "  any  person  who  by  his  own  indus- 
try, genius,  efforts  and  expense  has  in- 
vented or  produced  any  new  and  original 
design  for  a  manufacture,  bust,  statue, 
alto-relievo,  or  bas-relief;  any  new  and 
original  design  for  the  printing  of  woollen, 
silk,  cotton  or  other  fabrics  ;  any  new  and 
original  impression,  ornament,  pattern, 
print  or  picture  to  be  printed,  painted, 
cast,   or  otherwise   placed  on   or  worked 


237  OF    INCORPOREAL    PERSONAL    PROPERTY. 

shall  not  use."  The  tise  here  mcntionod  has  been  held  to  mean  a  use  in 
public ;  if  therefore  the  invention,  for  which  the  patent  is  sought  to  be 
obtained,  has  been  previously  used  in  public  within  the  realm,  the  patent 
will  be  void.(/i)  And  the  realm  in  this  statute  has  been  determined  to 
r^oqon  mean  the  united  *kingdom  of  Great  Britain  and  Ireland ;  so  that 
when  separate  letters-patent  were  granted  for  England  and  Scot- 
land, if  any  invention  had  been  publicly  known  or  practiced  in  England, 
a  patent  for  Scotland  was  void.(i) 

By  an  act  of  parliament  to  Avhich  we  have  before  referred,  it  is,  how- 
ever, provided,  that  letters-patent  may  be  confirmed,  or  new  ones  granted, 
for  any  invention  or  supposed  invention,  Avhich  shall  have  been  found  by 
the  verdict  of  a  jury,  or  discovered  by  the  patentee  or  his  assigns,  to 
have  been  ^ther  wholly  or  in  part  invented  or  used  before,  if  the  Judi- 
cial Committee  of  the  Privy  Council,  upon  examining  the  matter,  shall 
be  satisfied  that  the  patentee  believed  himself  to  be  the  first  and  original 
inventor,  and  that  such  invention,  or  part  thereof,  had  not  been  publicly 
and  generally  used  before  the  date  of  the  first  letters-patent.(A;)  It  is 
also  now  provided  by  the  Patent  Law  Amendment  Act,  1852,  that  any 
invention  may  be  used  and  published  for  six  months  from  the  date  of  the 
application  for  letters-patent  for  the  invention,  without  prejudice  to  the 
letters-patent,  provided  the  provisional  specification^  which  describes  the 
nature  of  the  invention,  and  is  to  accompany  the  petition  for  the  letters- 

{h)  Lewis  v.  Marling,  10  B.  &  C.  22  (E.  C.  L.  R.  voL  21)  ;  Carpenter  v.  Smith,  9  M.  & 
W.  300;  Re  Newell,  4  C.  B.  N.  S.  269  (E.  C.  L.  R.  vol.  93)  ;  Betts  v.  Menzies,  10  H.  of 
L.  Cases  117;  9  Jur.  N.  S.  29;  Hills  v.  Liverpool  United  Gaslight  Company,  9  Jur.  N- 
S.  140  ;  Harwood  v.  Great  Northern  Railway  Company,  35  L.  J.  Q.  B.  27  ;  Young  v 
Fernie,  Giff.  577  :  10  Jur.  N.  S.  526. 

{i)  Brown  v.  Annondale,  8  CI.  &  Fin.  214.         (A)  Stat.  5  &  6  Will.  IV.  c.  83,  s.  2. 

into  any  article  of  manufacture,  the  same  ceodings  to  be  the  same  as  provided  in  the 

not  having  been  known  or  used  by  others,  case  of  patents  for  inventions  and  disco- 

before  his  invention  or  production  thereof,  veries,  and  the  fees  as  provided  in  section 

or  patented  or  described  in  any  printed  seventy-five  :  sees.  71,  73,  74  and  75. 

publication,    may   upon    payment   of    the  Under  the  act  of  the  eighth   of  July, 

duty  required  by  law,  and  other  due  pro-  1870,    the    invidious   distinction    formerly 

ceedings  had,  the  same  as  in  cases  of  in-  existing  between   citizens   and  foreigners 

Tentions  or  discoveries,  obtain  a  patent  as  regards  the  fees  to  be  paid  in  patent 

therefor  "  for  three  years  and  six  months,  cases  is  removed,  and   in  fact  no  distinc- 

or  for  seven  years,  or  for  fourteen  years  tion  whatever  against  aliens  now  appears 

as  the  applicant  may  in   his  application  to   exist,  except  that  to  be  entitled  to  the 

elect,"   and   patentees  of   designs   issued  privilege   of    filing   a   caveat,   they   must 

prior  to  the  second  of  March,  1861,  shall  have  resided  for  one  year  previous,  in  the 

be  entitled  to   extensions  of  their  respec-  United  States,  and  declared  their  intention 

tive   patents   for   seven    years,   the    pro-  of  becoming  aitizens. 


OF  PATENTS  AND  COPYRIGHTS.  238 

patent,  be  allowed  by  the  proper  law  officer.(Z)  It  is  also  provided  that 
the  applicant,  instead  of  having  a  provisional  specification,  may,  if  he 
think  fit,  file  a  complete  specification  under  his  hand  and  seal,  particularly 
describing  and  ascertaining  the  nature  of  his  invention,  and  in  what 
manner  the  same  is  to  be  performed,  in  which  case  the  invention  will  be 
protected  for  six  months  from  the  date  of  the  application,  and  may  be 
used  and  published  without  prejudice  *to  any  letters-patent  to  r*90Q-| 
be  granted  for  the  same.(my  It  is  also  provided,  that  if  any 
application  for  letters-patent  be  made  in  fraud  of  the  true  and  first  in- 
ventor, any  letters-patent  granted  to  the  true  and  first  inventor,  shall 
not  be  invalidated  by  reason  of  any  use  or  publication  of  the  invention 
subsequent  to  such  application,  and  before  the  expiration  of  the  term  of 
protection.(w) 

Thirdly,  a  patent  must  be  granted  "  to  the  true  and  first  inventor  and 
inventors."  If  therefore  the  original  inventor  should  sell  his  secret  to 
another  person,  such  person  cannot  obtain  letters-patent  for  the  invention 
in  his  own  name ;  but  the  original  inventor  must  obtain  the  letters-patent, 
and  then  assign  them  to  the  other.  If  two  persons  should  both  make 
the  same  discovery,  he  who  first  publishes  it  by  obtaining  a  patent  for  it, 
will  be  the  true  and  first  inventor  within  the  meaning  of  the  statute, 
although  he  may  not  actually  have  been  the  first  to  make  the  discovery. (o) 
But  a  person  cannot  obtain  a  patent  for  an  invention  which  has  been  com- 
municated to  him  by  another  within  the  realm. (jo)     If,  however,  a  person 

(l)  Stat.  15  &  15  Vict.  c.  83,  s.  8 ;   Re  Newall,  4  C.  B.  N.  S.  260  (E.  C.  L.  R.  vol.  93)  ; 
Re  Bates  and  Redgate,  Law  Rep.  4  Ch.  Ap.  577  ;  38  L.  J.  Chan.  501. 
(m)  Sect.  9.     See  also  stat.  16  &  17  Vict.  c.  115,  s.  6. 
(w)  Stat.  15  &  16  Vict.  c.  83,  s.  10. 
(o)  Boulton  V.  Bull,  2  H.  Black.  487. 
(p)  Hill  V.  Thompson,  8  Taunt.  395  (E.  C.  L.  R.  vol.  4) ;  s.  c.  2  J.  B.  Moore  452. 

1  By  the  40th  section   of  the   Act  of  the  in  the   United   States  one  year,  next  pre- 

8th  of  July,  1870,  Stats,   at  Large   (1869-  ceding  the  filing  of  his  caveat,  and  made 

70),  p.  203,  wherever  further  time  may  be  oath  of  his  intention  to  become  a  citizen, 
desired  to  mature  an  invention,  it  may  be         The   filing  of  a  caveat  is   not  however 

lawful  to  file  in  the  Patent  Office,  a  caveat,  necessary  for  the  preservation  of  the  right, 

praying  protection  of  the  right  until  the  but  merely  enables  the  inventor  to  receive 

invention  is  matured  ;  whereupon,  on  ap-  notice  of  any  interfering  application  :  Hil- 

plication    for  a  patent  made   within   one  dreth  v.  Heath,  Cranch's  Patent  Decs.  101  ; 

year  after  filing  the  caveat,  by  any  other  so  as  to  offer  him   some  protection  from 

person,  for  a  patent  for  an  invention  which  the  rule  of  law,  which  gives  to  the  in- 

may  in  any  way  interfere,  notice  will  be  ventor  who  first  adapts  his  invention  to 

given    to    the    person  who    has    filed    the  practical  use,  the  right  to  the  grant  of  the 

caveat,  of  such  application;  and  an  alien  patent:  Phelps   v.  Brown,  4   Blatch.  C.  C. 

shall  have  this  privilege  who  has  resided  362. 


239  OF  INCORPOREAL  PERSONAL  PROPERTY. 

should  be  in  possession  of  an  invention  communicated  to  him  from  abroad, 
such  person,  if  he  be  the  first  introducer  of  the  invention  into  this 
country,  is  regarded  by  the  hiw  as  tlie  true  and  first  inventor  thereof 
within  the  meaning  of  the  statute  of  James  ;{cj)  and  it  is  no  objection 
that  the  patent  is  taken  out  in  trust  merely  for  the  foreign  inventor.(r) 
But  it  is  now  provided  that  wliere  letters-patent  are  granted  in  the 
United  Kingdom  for  any  invention  first  invented  in  any  foreign  country, 
r*oi(n  ^^  ^y  *^^^  subject  of  any  foreign  state,  *and  a  like  privilege  for 
the  exclusive  use  or  exercise  of  such  invention  in  any  foreign 
country  is  there  obtained  before  the  grant  of  such  letters-patent  in  the 
United  Kingdom,  all  rights  and  privileges  under  such  letters-patent  shall 
(notwithstanding  any  term  in  such  letters-patent  limited)  cease  and  be 
void  immediately  upon  the  expiration  or  other  determination  of  the  term 
of  the  like  privilege  obtained  in  such  foreign  country  ;  or  where  more 
than  one  such  like  privilege  is  obtained  abroad,  immediately  upon  the 
expiration  or  determination  of  the  term  of  such  privileges  which  shall 
first  expire  or  be  determined.  And  no  letters-patent  granted  for  any 
invention,  for  which  any  patent  or  like  privilege  shall  have  been  obtained 
in  any  foreign  country,  shall  be  of  any  validity,  if  granted  after  the  ex- 
piration of  the  term  for  which  the  foreign  patent  or  privilege  was  in 
force,  (s)  The  remaining  restrictions  imposed  by  the  act  of  James  I. 
require  no  comment. 

The  granting  of  letters-patent  is,  as  has  been  observed,  a  prerogative 
of  the  crown  ;  and  although  a  patent  may  now  be  always  obtained  for 
any  new  invention,  yet  the  grant  is  still  a  matter  of  favor  and  not  of 
right,  and  all  grants  of  letters-patent  for  inventions  are  at  the  present 
day  clogged  with  certain  conditions.  Of  these  conditions,  the  most  im- 
portant is  that  which  requires  the  inventor  particularly  to  describe  and 
ascertain  the  nature  of  his  invention,  and  in  what  manner  the  same  is  to 
be  performed,  by  an  instrument  in  writing  under  his  hand  and  seal,  called 
the  specification,  and  to  cause  the  same  to  be  filed  in  the  High  Court  of 
Chancery  within  a  given  period,  generally  six  calendar  months  from  the 
r*94Tl  ^^^e.(^)  This  instrument  *was  formerly  required  to  be  enrolled, 
instead  of  being  merely  filed  as  at  present.  And  it  is  provided 
by  the  act  of  1852  that,  if  a  complete  specification  be  filed  along  with 

(7)  Edgcberry  v.  Stephens,  2  Salk.  447. 

(r)  Beard  ;■.  Edgerton,  3  C.  B.  97,  129  (E.  C.  L.  R.  vol.  54). 

(«)  Stat.  15  &  16  Vict.  c.  83,  s.  25;  Daw  v.  Eley,  V.-C.  \Y.,  36  L.  .J.  N.  S.  482  ;  Law- 
Rep.  3  Eq.  496. 

(t)  Ibid.  8.  27.  See  stat.  16  &  17  Vict.  c.  115,  s.  6.  As  to  munitions  of  war,  see 
Stat.  22  Vict.  c.  13. 


OF  PATENTS  AND  COPYRIGHTS.  241 

the  petition  for  the  letters-patent,  then,  in  lieu  of  a  condition  for  making 
void  the  letters-patent  in  case  the  invention  be  not  described  and  ascer- 
tained by  a  subsequent  specification,  the  letters-patent  shall  be  condi- 
tioned to  become  void,  if  such  complete  specification  filed  as  aforesaid 
does  not  particularly  describe  and  ascertain  the  nature  of  the  invention, 
and  in  what  manner  the  same  is  to  be  performed. (li)'  The  object  of 
requiring  a  specification  is  to  secure  to  the  public  the  benefit  of  the 
knowledge  of  the  invention  after  the  term  granted  by  the  patent  shall 
have  expired.  The  framing  of  the  specification  is  a  matter  of  great 
nicety ;  for  the  description  contained  in  it  must  correspond  with  the 
title  of  the  invention  contained  in  the  letters-patent,(v)  and  must  clearly 
describe  the  invention,(?(^)  neither  covering  more  than  the  proper  subject 
of  the  patent,(a;)  nor  omitting  anything  necessary  to  make  the  descrip- 
tion intelligible.(7/)  Provision  however  has  been  made  by  an  act  of  par- 
liament before  referred  to,(z)  for  enabling  the  grantee  or  assignee  of  any 
letters-patent  to  enter  a  disclaimer  of  any  part  either  of  the  title  of  the 
invention,  or  of  the  specification,  stating  the  reason  of  such  disclaimer, 
or  to  enter  a  memorandum  of  any  alteration  in  the  title  or  specification, 
not  being  such  disclaimer  or  such  alteration  as  shall  extend  the  exclusive 
right  granted  by  the  patent.^     Under  these  provisions,   letters-patent 

(w)  Stat.  15  &  16  Vict.  c.  83,  s.  9. 

{v)  Rex  V.  Wheeler,  2   B.   &  Aid.  345,  350.     See  Nickels  v.  Haslam,  7  M.  &  G.  378  ; 
(E.  C.  L.  R.  Tol.  49) ;  Beard  v.  Egerton,  3  C.  B.  97  (E.  C.  L.  R.  vol.  54). 
(w)  Bloxham  v.  Elsee,  6  B.  &  C.  169  (E.  C.  L.  R.  vol.  13). 
(x)  Hill  V.  Thompson,  3  Meriv.  629. 

(y)  Rex  V.  Wheeler,  ubi  supra;  Neilsoa  v.  Harford,  8  M.  &  W.  805. 
(z)  Stat.  5  &  6  Will.  IV.  c.  83,  s.  1.     See  also  stat.  7  &  8  Vict.  c.  69,  ss.  5,  6. 

1  Whenever  a  patent  is  inoperative  or  shall  have,  through  inadvertence,  acci- 
invalid  by  reason  of  a  defective  or  insufii-  dent,  or  mistake,  made  his  specification  of 
cient  specification,  or  by  reason  of  claim-  claim  too  broad,  claiming  more  than  that 
ing  more  than  the  patentee  had  a  right  to,  of  which  he  was  the  original  or  first  inven- 
without  any  fraudulent  intent  in  so  doing,  tor,  some  material  and  substantial  part  of 
he  may  surrender,  and  obtain  a  new  patent  the  thing  patented  being  truly  and  justly 
upon  a  corrected  specification ;  said  re-  his  own,  any  such  patentee  may  make 
issued  patent  with  corrected  specification  disclaimer  of  such  parts  of  the  thing 
to  have  the  same  effect  as  if  the  same  had  patented,  as  the  disclaimant  shall  not 
been  filed  in  such  corrected  form :  Stats,  claim  to  hold  by  virtue  of  the  patent  or 
atLarge  (1869-1870),  205,  sec.  53.  And  by  assignment,  stating  therein  the  extent  of 
the  thirty-third  section  of  the  said  act,  the  his  interest  in  such  patent.  And  such 
benefit  of  this  section  is  extended  to  the  disclaimer  shall  thereafter  be  taken  and 
assignee  of  a  patent:  Id.  202.  considered  as  part  of  the  original  specifi- 

2  A  provision  of  the  same  character  is  cation,  to  the  extent  of  the  interest  which 
contained  in  the  fifty-fourth  section  of  the  shall  be  possessed  in  the  patent,  or  right 
act  of  the  8th  of  July,  1870,  which  in  sub-  secured  thereby  to  the  disclaimant:  Stats, 
stanceprovides  that  whenever  any  patentee  at  Large  (1869-70),  p.  206.     On  the   sub- 


241  OF  INCORPOREAL  PERSONAL  PROPERTY. 

r*0A9l  originally  void  may  in  many  *cases  be  rendered  valid,  the  dis- 
-^  claimer  being  read  as  part  of  the  original  title  or  specifica- 
tion.(a)  But  the  object  of  the  act  is  merely  to  allow  of  the  removal 
from  the  specification  of  that  which  is  superfluous ;  and  a  disclaimer  will 
not  be  allowed  which  converts  a  description,  in  itself  unintelligible  or 
impracticable,  into  a  practicable  description  of  a  useful  invention. (J) 
The  above-mentioned  provisions  have  been  extended  to  letters-patent 
granted  and  specifications  filed  under  the  Patent  Law  Amendment  Act, 
1852. (c)  This  act  also  provides  for  the  printing,  publishing  and  sale, 
under  the  direction  of  the  commissioners  of  patents,  of  all  specifications, 
disclaimers,  and  memoranda -of  alterations  deposited  or  filed  under  the 
Q.ct.{d)  A  "register  of  patents"  is  also  directed  to  be  kept,  where  shall 
be  entered  and  recorded,  in  chronological  order,  all  letters-patent  granted 
under  the  act,  the  deposit  or  filing  of  specifications,  disclaimers  and 
memoranda  of  alterations  filed  in  respect  of  such  letters-patent,  all 
amendments  in  such  letters-patent  and  specifications,  all  confirmations 
and  extensions  of  such  letters-patent,  the  expiry,  vaoating  or  cancelling 
of  such  letters-patent,  with  the  dates  thereof  respectively,  and  all  other 
matters  and  things  afiecting  the  validity  of  such  letters-patent  as  the 
commissioners  may  direct ;  and  such  register,  or  a  copy  thereof,  is  to  be 
open  at  all  convenient  times  to  the  inspection  of  the  public,  subject  to 
such  regulations  as  the  commissioners  may  make.(e) 

Another  condition  formerly  inserted  in  letters-patent  rendered  them 
void,  in  case  the  letters-patent,  or  the  liberty  and  privileges  thereby 
granted,  should  become  *vested  in  or  in  trust  for  more  than  the 
■-  -I  number  of  twelve  persons,  or  their  representatives,  at  any  one 
time,  as  partners,  dividing  or  entitled  to  divide  the  benefit  or  profit 
obtained  by  reason  thereof;  but  it  is  now  enacted  that,  notwithstanding 
any  proviso  that  may  exist  in  former  letters-patent,  it  shall  be  lawful  for 
a  larger  number  than  twelve  j^ersons  hereafter  to  have  a  legal  and  bene- 
ficial interest  in  such  letters-patent. (/) 

(a)  The  Queen  v.  Mill,  10  C.  B.  3T9  (E.  C.  L.  R.  vol.  70) ;  Seed  v.  Higgins,  8  H.  of  L. 
Cases  550. 
(6)  Ralston  v.  Smith,  11  H.  of  L.  Cases  223. 
(c)  Stat.  15  &  16  Vict.  c.  83,  s.  39.  (d)  Sect.  29. 

(e)  Sect.  34. 
(/)  Sect.  36.     See  post,  the  chapter  on  joint  ownership  and  joint  liability. 

ject  of  disclaimer,  see   the  following  deci-  273;  Reed  v.  Cutter  et  al.,  Id.  590;  Hall  v. 

sions    made    prior    to    the    law    of    1870:  Wiles,  2  Blatch.  C.  C.  194 ;  Silsby  v.  Foot, 

O'Reilly  et  al.  r.  Morse  et  al.,  15  How.  63;  20  How.   U.   S.   378;   McCormick  v.   Sey- 

Whitney  et  al.  v.  Emmett  et  al.,  1  Baldw.  mour,  3  Blatch.  C.  C.  209. 
303 ;   Wyeth   et  al.  v.  Stone  et  al.,  1  Story 


OF   PATENTS    AND    COPYRIGHTS.  243 

In  letters-patent  a  clause  is  usually  contained  forbidding  all  persons 
from  using  tlie  invention  without  the  consent,  license  or  agreement  of  the 
inventor,  his  executors,  administrators  or  assigns,  in  writing,  under  his  or 
their  hands  and  seals,  first  had  and  obtained  in  that  behalf  (^)  The 
granting  of  licenses  to  use  a  patent  is  one  of  the  most  profitable  ways 
of"turning  it  to  account.  All  licenses  are  now  required  to  be  registered 
in  the  registry  to  be  presently  mentioned. 

Letters-patent  obtained  in  England  formerly  conferred  an  exclusive 
privilege  only  within  England,  Wales,  and  the  town  of  Berwick  upon 
Tweed ;  and  also  within  the  islands  of  Guernsey,  Jersey,  Alderney,  Sark 
and  Man,  and  her  Majesty's  colonies  and  plantations  abroad,  if  so  ex- 
pressed in  the  patent.  In  order  to  obtain  the  like  exclusive  privilege  for 
Scotland,  it  was  necessary  to  obtain  separate  letters-patent  under  the 
seal  appointed  by  the  treaty  of  union  to  be  used  instead  of  the  great  seal 
of  Scotland ;  and  in  the  same  manner  the  like  privilege  for  Ireland  was 
required  to  be  obtained  by  letters-patent  under  the  great  seal  for  Ireland. 
But  it  is  now  provided  that  letters-patent  shall  extend  to  the  whole  of 
the  United  Kingdom  of  Great  Britain  and  Ireland,  the  channel  islands, 
and  the  Isle  *of  Man ;  and  in  case  the  warrant  for  granting  r* 944-1 
the  patent  shall  so  direct,  such  letters-patent  shall  be  made  ap- 
plicable to  her  Majesty's  colonies  and  plantations  abroad,  or  such  of  them 
as  may  be  mentioned  in  such  warrant.(/i)  But  where  separate  letters  for 
England,  Scotland  or  Ireland  have  been  already  granted,  separate  letters- 
patent  may  still  be  granted  for  the  other  countries,  on  payment  for  such 
country  of  one-third  the  stamp  duties  payable  for  a  patent  for  the  whole 
kingdom.  (2) 

Letters-patent  and  the  privileges  thereby  granted  are  freely  assignable 
from  one  person  to  another,  and  the  assignee  by  such  assignment  is 
placed  in  the  same  position  as  his  assignor  previously  stood.^     The  as- 

(g)  See  the  form  of  letters-patent  in  Appendix  (A). 

(h)  Stat.  15  &  16  Vict.  c.  83,  s.  18.  («)  Stat.  16  &  17  Vict.  c.  5,  s.  4. 

1  See  Act  of  Congress  of  eiglith  of  July,  signee,  in  all  cases  taking  subject  to  the 

1870,  sec.  .36  ;  Stats,  at  Large  (1869-1870),  legal  consequences  of  the  previous  acts 

203.     Under  the  law  as  it  existed  prior  to  of  the  assignor  (McClurg  v.  Kingsland  et 

this  act,  it  has  been   held  that  an  assign-  al.,  1   How.  202),  may  maintain   an  action 

ment  of  a  patent  right  may  be  made  before  in  his  own  name  :  Brooks  et  al.  v.  Bicknell 

the  issuing  of  a  patent:  Gayler  v.  Wilder,  et  al.,  3  McLean   250;  but  the  assignment 

10  How.  477  ;  so  also,  of  the  assignment  must  be    in    writing     Gibson  v.   Cook,  2 

of  the  extension  of  a  patent :  Railroad  Co.  Blatch.    C.    C.    144.     An   extension    of   a 

V.   Trumble,    10  Wall.   367;   and  the  as-  patent,  procured  by  the  executor  or  ad- 


244 


OF  INCORPOREAL  PERSONAL  PROPERTY. 


signee  may  consequently  bring  in  his  own  name  the  same  actions  and 
suits  both  at  law  and  in  equity  against  those  who  have  infringed  upon 
the  patent  as  the  patentee  himself  might  have  done.(^)  The  privileges 
granted  by  letters-patent  are  therefore  plainly  an  instance  of  an  incor- 
poreal kind  of  personal  property,  different  in  its  nature  from  a  mere 
chose  in  action,  which  never  has  been  assignable  at  law.  A  deed  is  said 
to  be  necessary  for  the  valid  legal  assignment  of  letters-patent ;  but  the 
author  is  not  aware  of  any  authority  for  this  position  ;  and  the  general 

(k)  Godson  on  Patents   237;  Walton  v.  Lavater,   8  C.  B.  N.  S.  162   (E.   C.  L.  R. 
voL  98). 


ministrator  of  the  inventor,  did  not  enure 
to  the  benefit  of  the  assignees  :  Wilson  v. 
Rousseau  et  al.,  4  How.  646  ;  for  under 
the  statute  law  prior  to  1870,  an  assign- 
ment of  a  patent,  or  a  license  to  use  the 
privilege  during  the  term  for  which  letters 
were  granted,  although  including  a  re- 
issue, did  not  include  an  extension  :  Hodge 
V.  Railroad,  3  Fish.  Pat.  Cas.  410 ;  Wood 
V.  Railroad,  Id.  464;  but,  by  the  sixty- 
seventh  section  of  the  act  above  referred 
to,  "the  benefit  of  the  extension  of  a 
patent,  shall  extend  to  the  assignees  and 
grantees  of  the  right  to  use  the  thing 
patented,  to  the  extent  of  their  interest 
therein  ;"  and  an  assignee  who  was  in  the 
use  of  the  thing  patented,  at  the  time  of 
the  renewal,  has  still  a  right  to  use  it 
Wilson  V.  Rousseau  et  al.,  4  How.  646 
Wilson  V.  Simpson  et  al.,  9  Id.  109 
Bloomer  v.  McQuewan,  14  Id.  539  ;  Bloomer 
V.  Millenger,  1  Wall.  340;  ChaflFee  v. 
Boston  Belting  Co.,  22  How.  U.  S.  217. 

A  covenant  by  a  patentee,  made  prior  to 
the  law  authorizing  extensions,  that  the 
covenantee  should  have  the  benefit  of  any 
improvement,  or  alteration,  or  renewal  of 
the  patent,  does  not  include  the  extension 
obtained  by  an  administrator  under  the 
act  of  1836,  but  only  the  renewal  obtained 
upon  a  surrender  of  the  patent,  on  account 
of  a  defective  specification  :  Wilson  v. 
Rousseau  et  al.,  4  How.  646  ;  but  see  act  of 
July  8,  1870,  sec.  67;  and  a  covenant, .by 
which  a  licensee  will  become  entitled  to  an 
extension  under  the  act  of  1836,  will  not 
entitle  him  to  an  extension  under  a  special 
act:  Bloomer  v.  StoUey,  6  McLean  158. 


An  assignee  of  a  patent,  is  one  who  has 
had  transferred  to  him  in  writing,  the 
whole  interest  of  the  original  patent,  or 
any  undivided  part  of  such  whole  interest, 
for  every  portion  of  the  United  States.  A 
grantee,  is  one  who  has  had  transferred  to 
him  in  writing,  the  exclusive  right  under 
the  patent,  to  make  and  use,  and  to  grant 
to  others  to  make  and  use,  the  thing 
patented,  within  some  specified  part  of  the 
United  States.  A  licensee,  is  one  who  has 
had  transferred  to  him,  in  writing  or 
orally,  a  less  or  different  interest,  than 
either  the  interest  in  the  whole  patent,  or 
an  undivided  part  of  such  whole  interest, 
or  an  exclusive  sectional  interest :  Potter  v. 
Holland,  4  Blatch.  C.  C.  206. 

When  an  assignment  is  made  under  the 
act  of  1836,  of  the  exclusive  right  within 
a  specified  part  of  the  country,  the  as- 
signee may  sue  in  his  own  name,  provided 
the  assignment  be  of  the  entire  and  un- 
qualified monopoly  ;  but  any  assignment 
short  of  this,  is  a  mere  license,  and  will 
not  carry  with  it  a  right  to  the  assignee  to 
sue  in  his  own  name :  Gayler  et  al.  v. 
Wilder,  10  How.  477;  but  one  cannot 
divide  his  right  into  parts,  and  grant  to 
one  man  the  right  to  use  it  in  connection 
with,  or  application  to,  one  class  of  sub- 
jects, and  to  another,  in  its  connection 
with,  or  application  to,  another  class  of 
subjects,  to  such  an  extent  that  purchasers 
from  any  of  these  persons,  may  not  use 
the  thing  purchased  exactly  as  they  please  : 
Washing  Machine  Co.  v.  Earle,  3  Wall. 
Jr.  320. 


OF    PATENTS    AND    COPYRIGHTS.  244 

rule  appears  to  be,  that  the  assignment  of  incorporeal  personal  property 
may  be  made  without  deed.  Perhaps,  however,  the  necessity  of  an  as- 
signment by  deed  may  be  implied  from  the  clause  in  the  letters-patent, 
which  forbids  the  use  of  the  invention  "  without  the  consent,  license  or 
agreement  of  the  inventor,  his  executors,  administrators  or  assigns,  in 
•writing,  under  his  or  their  hands  *and  seals,  first  had  and  r*9j^p-i 
obtained  in  that  behalf."  All  assignments  of  letters-patent  are 
now  required  to  be  registered  under  the  Patent  Law  Amendment  Act, 
1852.^ 

The  act  provides  that  there  shall  be  kept  at  the  office  appointed  for 
filing  specifications  in  chancery  under  this  act,  a  book  or  books  entitled 
"  The  Register  of  Proprietors,"  wherein  shall  be  entered,  in  such  manner 
as  the  commissioners  shall  direct,  the  assignment  of  any  letters-patent,  or 
of  any  share  or  interest  therein,  any  license  under  letters-patent,  and  the 
district  to  which  such  license  relates,  with  the  name  or  names  of  any  per- 
son having  any  share  or  interest  in  such  letters-patent  or  license,  the 
date  of  his  or  their  acquiring  such  letters-patent,  share  and  interest,  and 
any  other  matter  or  thing  relating  to  or  affecting  the  proprietorship  in 
such  letters-patent  or  license ;  and  a  copy  of  any  entry  in  such  book 
certified  under  such  seal  as  may  have  been  appointed,  or  as  may  be 
n  directed  by  the  Lord  Chancellor,  to  be  used  in  the  said  office,  shall  be 
given  to  any  person  requiring  the  same,  on  payment  of  the  fees  therein 
provided ;  and  such  copies  so  certified  shall  be  received  in  evidence,  in 
all  courts  and  in  all  proceedings,  and  shall  be  prima  facie  proof  of  the 
assignment  of  such  letters-patent,  or  share  or  interests  therein,  or  of  the 
license  or  proprietorship  as  therein  expressed ;  provided  always,  that 
until  such  entry  shall  have  been  made,  the  grantee  or  grantees  of  the 
letters-patent  shall  be  deemed  and  taken  to  be  the  sole  and  exclusive 
proprietor  or  proprietors  of  such  letters-patent,  and  of  all  the  licenses 
and  privileges  thereby  given  and  granted. (Z)^ 

(/)  Stat.  15  &  16  Vict.  c.  83,  s.  35.     See  Green's  Patent,  24  Bear.  145  ;   Chollett  v. 
Hoffman"  T  E.  &  B.  686  (E.  C.  L.  R.  vol.  90). 

1  Act   of   Congress   of  eighth    of  July,  patents  in  the  United  States  prior  to   the 

1870,  sec.  33  ;  Stats,  at  Large  (18G9-I870),  act  of  1870,  may  still   be   found  useful  in 

p.  202  :  Gayler  et  al.  v.   Wilder,  10  How.  construing  that  statute. 

477  ;   Wyeth  et  al.  v.  Stone  et  al.,  1  Story  The  improvements  in  mechanics,  con- 

273;  Gibson  V.  Cook,  2  Blatch.  C.  C.  144;  sist   of  new  adaptations  or  combinations 

but  the  registration  of  an  assignment  of  a  of  the  six  primary  mechanical  powers  ;  but 

patent  right,  is  not  necessary  as  between  any  combination  of  mere  theory,  existing 

the  parties  :  Black  v.  Stone,  33  Ala.  327.  only  in  the  brain  of  the  inventor,  and  not 

2  The    cases    referred    to   in   the   fol-  rendered  effective  practically  and  materi- 

lowing    note,  as  interpreting  the  law  of  ally,  although  its  advantages,  and  its  use- 


245 


OF  INCORPOREAL  PERSONAL  PROPERTY. 


Closely  connected  with  the  subject  of  patents  is  that  of  copyright. 


fulness  to  the  public,  may  be  demonstra- 
ted with  mathematical  certainty,  cannot 
be  the  subject  of  a  patent,  beinp;  merely 
an  abstract  principle  :  Odwine  v.  Winkley, 
2  Gall.  51  ;  Blanchard  v.  Sprague,  3  Sumn. 
535  ;  Stone  i'.  Sprague  et  al.,  1  Story  270  ; 
Smith  V.  Ely,  5  McLean  76.  In  the  case 
of  Le  Roy  et  al.  v.  Tatham  et  al.,  14  How. 
156,  Justice  McLean  says:  "  A  principle  is 
not  patentable.  A  principle  in  the  ab- 
stract is  a  fundamental  truth  ;  an  original 
cause;  a  motive;  these  cannot  be  patented, 
as  no  one  can  claim  in  either  of  them  an 
exclusive  right  .  .  .  the  elements  of  power 
existing,  the  invention  is  not  in  discover- 
ing them,  but  in  applying  them  to  useful 
objects."  But  the  original  inventor  of  an 
abstract  principle,  who  has  reduced  it  to 
a  practical  and  useful  form,  is  entitled  to 
a  patent ;  Woodcock  v.  Parker  et  al.,  1 
Gall.  438  ;  Bedford  v.  Hunt  et  al.,  1  Mass. 
302  ;  Le  Roy  et  al.  v.  Tatham  et  al.,  14  How. 
156  ;  "Washburn  et  al.  v.  Gould,  3  Story 
1 22  ;  Lowell  v.  Lewis,  1  Mass.  182  ;  Whitely 
V.  Swayne,  7  Wall.  U.  S.  685  ;  if,  however, 
the  thing  patented  had  been  previously 
known  and  used,  the  patent  is  void  :  Bed- 
ford V.  Hunt  et  al.,  1  Mass.  302  ;  Shaw  v. 
Cooper,  7  Peters  292  ;  Whitney  et  al.  v. 
Emmet  et  al.,  1  Baldw.  303 ;  Morris  v. 
Huntington,  1  Paine  C.  C.  348  ;  Pennock 
et  al.  V.  Dialogue,  2  Peters  1  ;  Reed  v. 
Cutter  et  al.,  1  Story  590  ;  for  the  appli- 
cant must  be  the  sole  inventor;  Thomas  v. 
Weeks,  2  Paine  C.  C.  92  ;  and  this  is  the 
case,  even  where  the  inventor  was  entirely 
ignorant  of  such  previous  use  :  Evans  v. 
Eaton,  3  Wheat.  454;  s.  c.  1  Peters  C.  C. 
322;  Dawson  v.  Pollen,  2  Wash.  C.  C. 
311 ;  Delano  v.  Scott,  Gilp.  489  ;  so  where 
an  original  inventor  allows  his  invention 
to  be  used  by  the  public,  this  is  consi- 
dered as  an  abandonment  of  his  right,  and 
of  course  will  furnish  a  good  objection  to 
his  obtaining  a  patent:  Gayler  et  al.  v. 
Wilder,  10  How.  477  ;  Shaw  v.  Cooper,  7 
Peters  292  ;  Whittemore  et  al.  v.  Cutter,  1 
Gall.  478  ;  Melius  v.  Silsbee,  4  Mass.  108  ; 
Pennock  et  al.  v.  Dialogue,  2  Peters  1 ;  but 
it  should  be  clearly  established  by  proof, 


that  such  public  use  was  with  the  knowl- 
edge and  consent  of  the  inventor :  neither 
acts  alone,  nor  declarations  alone,  being 
suflRcient  to  prove  an  abandonment: 
McCormick  v.  Seymour,  2  Blatch.  C.  C. 
194  ;  and  the  mere  user  by  the  inventor 
of  his  discovery,  in  trying  experiments,  or 
by  his  neighbors,  with  his  consent,  as  an 
act  of  kindness,  for  temporary  and  occa- 
sional purposes  only,  will  not  destroy  the 
right  of  the  discoverer  to  a  patent :  Wycth 
et  al.  V.  Stone  et  al.,  1  Story,  273  ;  Winans 
V.  Schenectady  and  Troy  Railroad  Com- 
pany ;  2  Blatch.  C.  C.  229  ;  Agawam  Co. 
V.  Jordan,  7  Wall.  U.  S.  583  ;  nor  experi- 
ments made  by  another,  although  tliose 
experiments  led  to  the  invention  subse- 
quently patented  :  Allen  v.  Hunter,  6 
McLean  303  ;  Cahon  v.  King,  I  Clif.  C. 
C.  592  ;  but  the  use  of  several  machines 
in  public,  for  more  than  two  years  prior 
to  applying  for  a  patent,  slightly  varying 
in  form  and  arrangement,  yet  substantially 
the  same  as  afterwards  patented,  cannot 
be  alleged  as  experimental,  so  as  to  avoid 
the  consequences  of  such  prior  use ; 
Sanders  v.  Logan  et  al.,  9  Am.  L.  Reg. 
47G  ;  Tappan  v.  National  Bank  Co.,  4 
Blatch.  C.  C.  509  ;  so,  too,  the  inventor 
will  not  be  deprived  of  his  patent,  where 
the  knowledge  of  the  discovery  is  surrep- 
titiously obtained  and  communicated  to 
the  public  :  Shaw  v.  Cooper,  7  Peters  292  ; 
Whitney  et  al.  v.  Emmett  et  al.,  1  Baldw. 
303  ;  Ryan  et  al.  v.  Goodwin  et  al.,  3  Sumn. 
514  ;  and  in  like  manner,  any  intermediate 
knowledge  or  use,  between  the  time  of  dis-  ^ 
covery  and  the  application  for  a  patent,  by 
a  subsequent  inventor,  will  not  deprive  the 
original  discoverer  of  his  right  to  a  patent, 
who  is  during  that  time  perfecting  his 
invention,  or  using  due  diligence  to  secure 
his  patent :  Whitney  et  al.  v.  Emmett  et. 
al.,  1  Baldw.  303  ;  Morris  v.  Huntington,  1 
Paine  C.  C.  348;  Reed  v.  Cutter  et  al.,  I 
Story  590  ;  nor,  on  the  other  hand,  will 
the  idea  of  the  discovery,  though  it  has 
occurred  to  others,  deprive  the  invention 
of  its  originality,  unless  the  idea  had  been 
embodied  in  a  practical  form:    Teese  v. 


OF   PATENTS   AND   COPYRIGHTS. 


245 


Copyright  may  be  defined  to  be  the  *exclusive  right  of  multiply-    [*246] 


Phelps,  1  McAll.  C.  C.  48  ;  Ellithorp  v.  Rob- 
ertson, 4  Blatch.  C.  C.  307  ;  and  the  time 
of  the  description  in  a  printed  publication, 
must  be  when  the  invention  by  the  paten- 
tee was  made,  and  not  when  he  presented 
his  application  :  Bartholomew  v.  Sawyer, 
4  Blatch.  C.  C.  347. 

A  previous  discovery  in  a  foreign 
country,  will  not  render  a  patent  obtained 
here  void,  unless  such  discovery  had  been 
patented,  or  described  in  a  printed  publi- 
cation :  O'Reilly  et  al.  v.  Morse  et  al.,  15 
How.  68  ;  Brooks  et  al.  v.  Bicknell  et  al., 
3  McLean  250  ;  Bartholomew  v.  Sawyer,  4 
Blatch.  C.  0.  347. 

If  a  machine  produce  several  different 
effects  by  a  particular  combination  of 
machinery,  and  these  effects  are  produced 
in  the  same  way  in  another  machine,  and 
a  new  effect  added,  the  inventor  of  the 
latter  is  not  entitled  to  a  patent  for  the 
■whole  of  the  machine,  but  merely  for  the 
improvement:  Whittemore  et  al.  v.  Cutter, 
1  Gall.  478  ;  Odwine  v.  Winkley,  2  Id.  51  ; 
Barrett  et  al.  v.  Hall  et.  al.,  1  Mass.  447  ; 
Seymour  v.  Osborne,  11  Wall.  U.  S.  518  ; 
Goodyear  v.  Matthews,  1  Paine  C.  C.  300  ; 
and  for  each  improvement  of  a  machine, 
there  must  be  a  separate  patent :  Barrett 
et  al.  V.  Hall  et  al.,  1  Mass.  447  ;  McCor. 
mick  V.  Talcott,  20  How.  U.  S.  402  ;  and  a 
claim  for  a  combination  of  several  devi- 
ces, so  as  to  produce  a  particular  result,  is 
not  good  for  a  claim  for  any  mode*of  com- 
bining those  devices  :  Case  v.  Brown,  2 
Wall.  320  ;  Burr  v.  Duryee,  1  Id.  531. 

The  description  contained  in  the  specifi- 
cation, must  be  so  clear,  that  any  one 
skilled  in  the  art  to  which  it  appertains, 
may  compound  or  use  the  thing  patented, 
witliout  making  experiments  :  Wood  v. 
Underbill,  5  How.  1 ;  Gray  et  al.  v.  James 
et  al.,  1  Peters  C.  C.  394  ;  Burr  v.  Cow- 
perthwait,  4  Blatch.  C.  C.  163  ;  Seymour 
V.  Osborne,  11  Id.  516.  In  the  case  of 
Lowell  V.  Lewis,  1  Mass.  182,  however,  it 
•was  decided,  that  if  the  invention  be 
definitely  described  in  the  patent,  so  as  to 
distinguish  it  from  what  is  before  known, 
the  patent  will  be  good,  though  the  speci- 


fication does  not  describe  the  invention, 
in  such  full,  exact,  and  clear  terms,  that  a 
person  skilled  in  the  art  or  science  of 
which  it  is  a  branch,  could  construct  or 
make  the  thing  invented  ;  but  the  inven- 
tion must  be  so  clearly  described,  as  to 
enable  the  public  to  appropriate  it,  after 
the  expiration  of  the  patent  right :  Sulli- 
van V.  Redfield  et  al.,  1  Paine  C.  C.  441  ; 
Evans  v.  Chambers,  2  Wash.  C.  C.  125  ; 
Ames  V.  Howard  et  al.,  1  Sumn.  482  ;  and 
not  leave  the  person  attempting  to  use  the 
discovery  to  find  it  out  by  experiment : 
Tyler  v.  Boston,  7  Wall.  U.  S.  327. 

If  a  patent  has  been  granted  upon  a 
specification  defective  by  reason  of  its 
obscurity,  the  proper  course  is  to  surren- 
der the  patent  and  take  out  a  new  one : 
Stimpson  v.  The  West  Chester  Railroad 
Company,  4  How.  380  ;  Wilson  v.  Rousseau 
et  al.  Id.  646  ;  Odwine  v.  The  Amesbury 
Nail  Factory,  2  Mass.  28  ;  and  the  second 
patent  will  be  considered  as  emanating,  at 
the  time  the  first  was  granted  :  Shaw  v. 
Cooper,  7  Peters  292  ;  Morris  v.  Hunting- 
ton, 1  Paine  C.  C.  348;  Grant  et  al.  v. 
Raymond,  6  Peters  218  ;  The  Philadelphia 
and  Trenton  Railroad  Company  v.  Stimp- 
son, 14  Id.  448  ;  Godfrey  v.  Eames,  1  Wall, 
317. 

If  a  patent  includes  more  than  the  ac- 
tual invention,  it  is  void  :  Wood  v.  Under- 
bill et  al.,  5  How.  1 ,  O'Reilly  et  al.  v. 
Morse,  et  al.,  15  Id.  63  ;  Whitney  et  al.  v. 
Emmit  et  al.,  1  Baldw.  303 ;  Batten  v. 
Taggart,  2  Wall.  Jr.  101;  and  the  proper 
course  under  these  circumstances,  is  for 
the  inventor  to  enter  a  disclaimer  for  the 
excess.     See  ante,  p.  241,  note  2. 

Nothing  useless  or  frivolous,  or  injuri- 
ous to  the  moral  health  or  comfort  of 
society,  can  be  the  subject  of  a  patent : 
Bedford?;.  Hunt  et  al.,  1  Mass.  302  ;  Whit- 
ney et  al.  V.  Emmett  et  al.  1  Baldw.  303  ; 
Lowell  V.  Lewis,  1  Mass.  182  ;  Langdon  v. 
De  Groot,  1  Paine  C.  C.  203  ;  consequently, 
where  the  principle  of  two  machines  is 
entirely  similar,  and  the  only  difference 
consists,  in  the  latter  being  constructed  of 
materials  better  adapted  to  the  purposes 


24G 


OF  INCORPOREAL  PERSONAL  PROPERTY. 


ing  copies  of  an  original  work   or  composition. (w)'     From  the  nature 


(to)  14  M.  &  W.  316. 


for  which  it  was  made  than  the  former,  it 
was  not  consiticred  as  entitled  to  a  patent, 
not  being  sutliciently  useful :  Hotchkiss  et 
al.  V.  Greenwood  et  al.,  11  How.  26G ; 
Stimpson  v.  The  Baltimore  and  vSusque- 
hanna  Railroad  Company,  10  Id.  343. 

On  the  subject  of  infringements  of  pa- 
tents, see  McChirg  et  al.  v.  Kingsland  et 
al.,  1  How.  202  ;  Gayler  et  al.  v.  Wilder, 
10  Id.  477  :  "Wilson  v.  Barnum,  8  Id.  258  ; 
Silsbee  f.  Foote,  14  Id.  219;  Gray  et  al.  v. 
James  et  al.,  1  Peters  C.  C.  394;  Di-Von  v. 
Mover,  4  Wash.  C.  C.  69  ;  Sawin  et  al.  v. 
Guild,  1  Gall.  485  ;  Evans  v.  Jordan  et  al., 
1  Brockenb.  248 ;  Livingston  &  Co.  v.  Jones 
&  Co.,  3  Wall.  Jr.  330;  Batten  v.  Silli- 
man,  Id.  ;  Jones  v.  Morehead,  1  Wall.  155; 
Kendall  v.  Winsor,  21  How.  U.  S.  322. 

1  By  the  eighty-sixth  section  of  the  act 
already  referred  to  on  the  subject  of 
patents  and  copyrights,  it  is  provided, 
"That  any  citizen  of  the  United  States,  or 
resident  therein,  who  shall  be  the  author, 
inventor  or  designer,  or  proprietor  of  any 
book,  map,  chart,  dramatic  or  musical 
composition,  engraving,  cut,  print,  or  pho- 
tograph, or  negative  thereof,  or  of  a  paint- 
ing, drawing,  chromo,  statue,  statutary, 
and  of  models  or  designs  intended  to  be 
perfected  as  works  of  the  fine  arts,  and  his 
executors,  administrators  or  assigns,  shall 
upon  complying  with  the  provisions  of 
this  act,  have  the  sole  libertj'  of  printing, 
reprinting,  publishing,  completing,  copy- 
ing, executing,  finishing,  and  vending  the 
same ;  and  in  the  case  of  a  dramatic  com- 
position, of  publicly  performing  or  repre- 
senting it,  or  causing  it  to  be  performed 
or  represented  by  others ;  and  authors 
may  reserve  the  right  to  dramatize  or 
translate  their  own  works."  And  by  the 
eighty-seventh  section  thereof,  the  period 
during  which  this  privilege  may  be  en- 
joyed, is  limited  to  twenty-eight  years, 
to  be  continued,  however,  for  a  further 
term  of  fourteen  years,  or  in  case  of  the 
death  ofthe  authororinventor,tohiswidow 
and  children  upon  conforming  to  the  regu- 


lations contained  in  the  eighty-eighth  sec- 
tion of  said  act. 

No  person  shall  be  entitled  to  a  copy- 
right unless  he  shall  before  publication, 
deposit  in  the  mail  a  printed  copy  of  the 
title  of  the  book  or  other  article,  or  a  de- 
scription of  the  painting,  drawing,  chromo, 
statue,  statuary,  or  model  or  design  for  a 
work  of  the  fine  arts,  for  which  he  desires 
a  copyright,  addressed  to  the  Librarian  of 
Congress,  and.  within  ten  days  from  the 
publication  thereof,  deposit  in  the  mail 
two  copies  of  such  copyright  book  or  other 
article,  or  in  case  of  a  painting,  drawing, 
statue,  statuary,  model  or  design  for  a 
work  of  the  fine  arts,  a  photograph  of  the 
same,  to  be  addressed  to  said  Librarian  of 
Congress,  as  thereafter  in  said  act  provided. 

The  ninety-first  section  provides,  "That 
the  Librarian  of  Congress  shall  record  the 
name  of  such  copyright  book  or  other 
article,  forthwith,  in  a  book  to  be  kept  for 
that  purpose,  in  the  words  following: 
"  Library  of  Congress,  to  wit,  Be  it  re- 
remembered  that  on  the  day  of 
Anno  Domini  A.  B.  of  hath  de- 

posited in  this  office,  the  title  of  a  book, 
(map,  chart,  or  otherwise,  as  the  case  may 
be,  or  description  of  the  article),  the  title 
or  description  of  which  is  in  the  following 
words,  to  wit:  (here  insert  the  title  or  de- 
scrij)tion),  the  right  whereof  he  claims  as 
author,  originator, (or  proprietor, as  the  case 
may  be),  in  conformity  with  the  laws  of  the 
United  States  respecting  copyrights.  C.  D., 
Librarian  of  Congress."  And  he  shall  give 
a  copy  of  the  title  or  description,  under  the 
seal  of  the  Librarian  of  Congress,  to  said 
proprietor,  whenever  he  shall  require  it." 

But  by  the  ninety-seventh  section  there- 
of, no  person  shall  maintain  an  action  for 
the  infringement  of  his  copyright,  unless 
he  shall  give  notice  thereof  by  inserting  in 
the  several  copies  of  every  edition  pub- 
lished, on  the  title  page,  or  the  page  im- 
mediately following,  if  it  be  a  book  ;  or  if 
a  map,  chart,  musical  composition,  print, 
cut,  engraving,  photograph,  painting,  draw- 


I 


OF    PATENTS   AND    COPYRIGHTS.  24G 

of  this  right  it  must  almost  necessarily  have  had  its  origin  at  a  period 
subsequent  to   the  invention   of  the  art   of   printing.     It   is,   however, 
the  better  opinion  that  such   a   right   existed  prior  to  the  Statute  of 
Anne,(n)  by  which  the  term  of  an  author's  copyright  was  first  limited  by 
the  legislature. (o)     But  this  statute,  together  with  others  by  which  the 
copyright  of  authors  Avas  further  secured,(jj)  has  been  repealed  by  the 
act  of  the  present  reign  to  amend  the  law  of  copyright,  on  which  the 
law  of  copyright  now  depends.(^)     By  this  act  the  copyright  of  every 
book  (which  term  includes  for  the  purposes  of  the  act  every  pamphlet, 
sheet  of  letterpress,  sheet  of  music,  map,  chart  or  plan)  published  after 
the  passing  of  the  act  in  the  lifetime  of  the  author  shall  endure  for  his 
natural  life,  and  for  the   further  term  of  seven   years  from  his  death, 
and    shall  be  the  property  of   such  author  and  his  assigns;    but  if 
the  term  of   seven    years  shall    expire    before  the  end    of  forty-tw^o 
years  from  the  fiirst  publication  of  the  book,  the  copyright  shall  in 
that  case  endure  for  such  period  of  forty-two  years ;  and  the  copyright 
in  every  book    published    after  the  death    of  its  author  shall    endure 
for  forty-two  years  from  the  first  publication  thereof. (r)     By  the  same 
act  the  existing  copyright  in  books  then  published  is  extended  for  the 
full  term  provided  by  the  act  in  the  case  of  books  thereafter  published. 
But  if  the  copyright  belong  wholly  or  partly  to  a  publisher  or  other 
person,  who  has  acquired  it  for  any  other  consideration  than  that  of 
natural  love  and  affection,  the  copyright  is  not  to  be  extended  by  the  act, 
♦unless  the  author,  if  living,  or  his  personal  representative  if  he    r*2471 
be  dead,  and  the  proprietor  of  such  copyright,  shall,  before  the 
expiration  of  the  subsisting  term  of  copyright,  consent  and  agree  to 
accept  the  benefits  of  the  act,  and  shall  register  a  minute  of  such  consent 
in  the  prescribed  form  ;  in  which  case  the  copyright  shall  endure  for  the 
full  term  provided  by  the  act,  and  shall  be  the  property  of  the  person  or 
persons  expressed  in  the  minute.(s)     And  in  order  to  provide  against 

(n)  8  Anne,  c.  19. 

(o)  Miller  v.  Taylor,  4  Burr.  2303  ;  Donaldson  v.  Beckett,  4  Burr.  2408  ;  2  Bro.  P.  C. 
129 ;  Boosey  v.  Jefferys,  6  Exch.  Rep.  592. 

(p)  Stats.  41  Geo.  III.  c.  107  ;  54  Geo.  III.  c.  156. 
{q)  Stat.  5  &  6  Vict.  c.  45.  (r)  Sect.  3. 

(«)  Stat.  5  &  6  Vict.  c.  45,  s.  4. 


ing,  chromo,  statue,  statuary,  or  model  or  ed,  the  following  words,  viz.,  "  Entered 
design  intended  to  be  perfected  and  com-  according  to  the  Act  of  Congress,  in  the 
pleted  as  a  work  of  the  fine  arts,  by  in-  year  by  A.  B.,  in  the  office  of  the  Li- 
scribing  upon  some  portion  of  the  face  or  brarianof.Congress  at  Washington."  Stats. 
front  thereof,  or  on  the  face  of  the  sub-  at  Large  (1869-1870),  p.  212,  &c. 
stance  on  which  the  same  shall  be  mount- 
20 


247  OF  INCORPOREAL  PERSONAL  PROPERTY. 

the  suppression  of  books  of  importance  to  the  public,  the  Judicial  Com- 
mittee of  the  Privy  Council  are  authorized,  on  complaint  made  to  them, 
that  the  proprietor  of  the  copyright  in  any  book,  after  the  death  of  its 
author,  has  refused  to  allow  its  republication,  to  grant  a  license  to  the 
complainant  to  publish  the  book  in  such  manner  and  subject  to  such  con- 
ditions as  they  may  think  fit.(^)  And  with  regard  to  encyclopaedias, 
reviews  and  other  periodical  works,  it  is  provided,  that  the  copyright  in 
every  article  shall  belong  to  the  proprietor  of  the  work  for  the  same 
term  as  is  given  by  the  act  to  authors  of  books,  whenever  any  such 
article  shall  have  been  or  shall  be  composed  on  the  terms  that  the  copy- 
right therein  shall  belong  to  such  proprietor  and  be  paid  for  by  him  ;(m) 
but  payment  must  be  actually  made  by  the  proprietor  before  the  copy- 
ri'^ht  can  vest  in  him  ;(a:)  and  after  the  term  of  twenty-eight  years  from 
the  first  publication  of  any  such  article,  the  right  of  publishing  the  same 
in  a  separate  form  shall  revert  to  the  author  for  the  remainder  of  the 
term  given  by  the  act ;  and  during  such  term  of  twenty-eight  years  the 
proprietor  shall  not  publish  any  such  article  separately  without  pre- 
viously obtaining  the  consent  of  the  author  or  his  assigns.  But  any 
r^OlRl  ^^^^0^  ™^y  reserve  to  himself  the  *right  to  publish  any  such 
^  ""  composition  in  a  separate  form,  and  he  will  then  be  entitled  to 
the  copyright  in  such  composition  when  published  separately,  without 
prejudice  to  the  right  of  the  proprietor  of  the  encyclopjEdia,  review  or 
other  periodical  in  which  it  may  have  first  appeared.(«/)  By  the  same 
act  the  sole  liberty  of  representing  any  dramatic  piece  at  any  place  of 
dramatic  entertainment,  and  of  performing  any  musical  composition  in 
any  public  place,(z)  is  secured  to  the  author  and  his  assigns  for  the  same 
term  as  is  provided  for  the  duration  of  copyright  in  books. (a)  The  pro- 
perty in  dramatic  works  had  previously  been  secured  to  the  authors  for 
a  shorter  period  by  an  act  of  the  reign  of  King  William  the  Fourth, 
which  is  still  in  operation. (J)  It  is  now  decided  that  a  foreigner  residing 
abroad  is  not  entitled  to  the  copyright  of  any  work  composed  by  him  and 
first  published  in  this  country  ;  but  a  foreigner  residing  in  England  or  in 

{t)  Stat.  5  &  6  Vict.  c.  45,  s.  5. 

(u)  See  Bishop  of  Hereford  v.  Griffin,  16  Sim.  190;  Sweet  v.  Benning,  16  C.  B.  459 
(E.  C.  L.  R.  vol.  81). 

(z)  Richardson  v.  Gilbert,  1  Sim.  N.  S.  336. 

(y)   Stat.  5  &  6  Vict.  c.  45,  s.  18. 

(z)  Russell  V.  Smith,  15  Sim.  181 ;   12  Q.  B.  217  (E.  C.  L.  R.  vol.  64). 

(a)  Stat.  5  &  6  Vict.  c.  45,  s.  20. 

(6)  Stat.  3  &  4  Will.  IV.  c.  15.  See  Morton  v.  Copeland,  16  C.  B.  517  (E.  C.  L.  R. 
vol.  81)  ;  Marsh  v.  Conquest,  17  C.  B.  N.  S.  418  (E.  C.  L.  R.  vol.  112) ;  12  W.  R  1006  ; 
Lacy  V.  Rhys,  4  B.  .k  S.  873  (E.  C.  L.  R.  vol.  116). 


OF  PATENTS  AND  COPYRIGHTS. 


248 


a  British  colony  at  the  time  of  the  first  publication  of  his  work  is  entitled 
to  the  copyright. (c)^ 

By  the  same  act  a  book  of  registry  is  required  to  be  kept  at  Stationers' 
Hall,  open  to  public  inspection  on  payment  of  a  small  fee,  in  which  may 
be  registered  the  proprietorship  and  assignment  of  copyrights.((i)  And 
no  proprietor  of  copyright  in  any  book  which  shall  be  first  published 
after  the  passing  of  the  act  can  maintain  any  action  or  suit  at  law  or 
in  equity,  or  any  summary  ^proceeding,  in  any  respect  of  any  r*04Q'i 
infringement  of  such  copyright,  unless  he  shall,  before  com- 
mencing such  action,  suit  or  proceeding,  have  caused  such  book  to  be 
registered  pursuant  to  the  act ;  but  the  omission  to  register  will  not 
affect  the  copyright  in  the  book,  but  only  the  right  to  sue  or  proceed  in 
respect  of  the  infringement  thereof.  And  the  remedies  of  the  proprietors 
of  the  sole  liberty  of  representing  any  dramatic  piece  under  the  above- 
mentioned  act  of  Will.  IV.  are  not  to  be  prejudiced,  although  no  entry 
shall  be  made  in  the  register  book.(e)  And  every  registered  proprietor 
is  empowered  to  assign  his  interest  by  making  entry  in  the  book  of 
registry  of  such  assignment  and  of  the  name  and  place  of  abode  of  the 

(c)  Jefferys  v.  Boosey,  H.  of  Lords,  1  Jur.  N.  S.  615  ;  4  H.  of  L.  Cases  815  ;  Low  v. 
Routledge,  V.-C.  K.,  10  Jur.  N.  S.  922,  affirmed  11  Jur.  N.  S.  939;  Law  Rep.  3  H.  ofL. 
100. 

{d)  Stat.  5  &  6  Vict.  c.  45,  ss.  II,  19,  20.  See  Ex  parte  Davidson,  18  C.  B'.  297; 
(E.  C.  L.  R.  vol.  86) ;  Ex  parte  Davidson,  2  E.  &  B.  577  (E.  C.  L.  R.  vol.  75),  qu? 

(e)  Stat.  5  &  6  Vict.  c.  45,  s.  24. 


^  In  the  recent  case  of  Low  v.  Routledge, 
Law  Rep.  1  Cli.  42,  referred  to  by  the  author, 
it  was  decided  that  an  alien  friend,  coming 
into  a  British  colony,  and  residing  there 
for  the  purpose  of  acquiring  copyright, 
during  and  at  the  time  of  the  publication 
in  England,  of  a  work  composed  by  him, 
and  first  published  in  that  country,  is 
entitled  to  copyriglit  in  England  in  the 
work  so  published,  though  he  va&y  not, 
under  the  laws  in  force  in  the  colony 
where  he  is  residing,  be  entitled  to  copy- 
right there. 

The  facts  of  this  case  were  these  :  Maria 
S.  Cummins,  author  of  the  story  called 
"Haunted  Hearts,"  was  a  native  of  this 
country,  but  in  April  and  May  of  1864, 
resided  in  Montreal,  Canada.  In  the  month 
of  April,  1864,  Sampson,  Low,  Son  &  Co., 
of  London,  the   plaintiffs,  paid    the  said 


M.  S.  Cummins,  the  purc-hase-money  for 
the  manuscript  and  copyright  of  the  said 
production  ;  and  thereupon  she  signed'  at 
Montreal,  and  from  thence  transmitted  to 
the  plaintiffs,  due  authority  for  enabling 
them  to  procure  entries  of  her  proprietor- 
ship in  the  copyright,  and  of  an  assignment 
thereof  by  her  tothe  plaintiffs,  pursuant  to 
statute.  It  was  alleged  also,  that  the  book 
was  printed  arid  published  on  the  23d  day 
of  May,  1864. 

The  principle,  however,  above  alluded 
to,  did  not  control  the  case,  which  went 
off  on  a  demurrer,  on  the  ground  that  in 
the  entry  of  the  proprietorship  of  the  copj'- 
riglit,  the  name  of  the  plaintiff's  firm  was 
different  from  the  name  stated  in  the  bill  ; 
and  that  the  date  of  publication  was  un- 
truly stated. 

Stfej:)os^,  p.  253,  note. 


249 


OF    INCORPOREAL   PERSONAL   PROPERTY. 


assignee,  in  the  form  given  in  a  schedule  to  the  act ;  and  such  assign- 
ment so  entered  is  declared  to  he  effectual  in  law  to  all  intents  and  pur- 
poses whatsoever,  without  being  subject  to  any  stamp  or  duty,  and  to 
be  of  the  same  force  and  effect  as  if  such  assignment  had  been  made  by 
deed.(/)'  But  if  the  right  of  representing  any  dramatic  piece  or  per- 
forming any  musical  composition  is  intended  to  pass  to  the  assignee  of 
the  copyright,  an  entry  must  be  expressly  made  of  such  intention. ((/) 

The  act  also  expressly  provides,  that  all  copyrights  protected  by  the 
act  shall  be  deemed  personal  property,  and  shall  be  transmissible  by  be- 
quest ;  or  in  case  of  intestacy,  shall  be  subject  to  the  same  laws  of  distri- 
bution as  other  personal  property. (A) 

■  In  order  to  give  more  effectual  protection  to  persons  entitled  to  the 

r*9'^m    copyright  of  books,  it  is  also  provided  *that  no  person,  not  being 

the  proprietor  of  the  copyright,  or  some  person  authorized  by 


(/)  Stat.  5  &  6  Vict.  c.  45,  s.  13. 


[g]  Sect.  22. 


{h)  Sect.  25. 


1  The  89th  section  of  the  Act  of  Con- 
gress of  the  8th  of  July,  1870,  prescribes 
"that  copyrights  shall  be  assignable  by 
law,  by  anj-  instrument  of  writing,  and 
such  assignment  shall  be  recorded  in  the 
oflBce  of  the  librarian  of  Congress,  within 
sixty  days  after  its  execution,  in  default  of 
which  it  shall  be  void  as  against  any  sub- 
sequent purchaser  or  mortgagee  for  a  valu- 
able consideration  without  notice." 

But  under  the  laws  of  the  United  States 
existing  previous  to  this  act,  it  has  been 
decided,  that  the  assignment,  if  not  re- 
corded, is  nevertheless  valid  as  between 
the  parties,  and  also,  as  to  all  persons  not 
claiming  under  the  assignors :  Webb  et 
al.  V.  Fowel  et  al.,  2  Wood  &  M.  497. 

An  assignment  made  by  one  entitled  to 
a  copyright,  will  only  convey  the  present 
right  of  the  author,  and  will  not  cover  any 
future  right  to  which  he  may  be  entitled, 
by  reason  of  the  renewal  of  his  right,  un- 
less it  is  clearly  indicated  that  such  future 
right  shall  also  have  been  assigned  ;  this 
is  based  upon  the  principle,  that  the  laws 
were  intended  for  the  benefit  of  the  authors 
themselves  :  Pierpont  v.  Fowlc,  2  Wood  & 
M.  23. 

Where  a  non-resident  alien,  author  of 


an  unprinted  comedy,  had  for  a  valuable 
consideration  transferred  his  proprietor- 
ship of  it  for  the  United  States,  to  a  resi- 
dent of  New  York,  who  adopted  measures 
for  procuring  a  copyright,  and  in  the 
meantime  represented  the  comedy,  some- 
what modified,  upon  the  public  stage,  it 
was  held,  that  the  assignee  could  not  sus- 
tain a  suit  under  the  statutes  of  the  United 
States,  against  one,  who,  having  obtained 
his  Ivuowledge  from  the  English  copy,  and 
from  witnessing  the  performance  in  New 
York,  was  representing  the  comedy  on  the 
stage  in  another  city.  But  it  was  also 
held,  that  notwithstanding  the  foreign 
author's  assignment,  was  at  law  nothing 
more  than  a  mere  license,  it  was  still,  in 
equity,  valuable  as  an  assignment  for 
the  United  States,  of  such  literary  pro- 
perty as  could  exist  in  his  composition, 
and  that  consequently  the  suit  could  be 
maintained  before  an  equitable  tribunal : 
Keenc  v.  Wheatley  et  al.,  9  Am.  L.  Reg. 
33. 

An  author  does  not  abandon  any  of  his 
rights  in  a  play,  by  consenting  to  its  public 
representation  while  in  manuscript,  and 
before  it  is  copyrighted :  Boucicault  v. 
Fox,  5  Blatch.  C.  C.  87. 


OF  PATENTS  AND  COPYRIGHTS.  250 

him,  may  import  into  any  part  of  the  United  Kingdom,  or  into  any  other 
part  of  the  British  dominions,  for  sale  or  hire  any  printed  book  first 
composed  or  -written  or  printed  and  published  in  any  part  of  the  United 
Kingdom,  wherein  there  shall  be  copyright,  and  reprinted  in  any  country 
or  place  whatsoever  out  of  the  British  dominions. (i)  And  by  subsequent 
acts,(y)  books,  wherein  the  copyright  is  subsisting,  first  composed  or 
written  or  printed  in  the  United  Kingdom,  and  printed  or  reprinted  in 
any  other  country,  are  absolutely  prohibited  to  be  imported  either  into 
the  United  Kingdom  or  into  the  British  possessions  abroad,  provided 
the  proprietor  of  such  copyright,  or  his  agent,  shall  have  given  notice  in 
writing  to  the  commissioners  of  customs  that  such  copyright  subsists, 
and  in  such  notice  shall  have  stated  when  the  copyright  will  expire. 
But  by  another  act(^)  it  is  provided,  that  in  case  the  proper  legislative 
authorities  in  any  British  possession  shall  make  any  act  or  ordinance  to 
make  due  provision  for  securing  the  rights  of  British  authors  in  such 
possession,  her  Majesty,  on  the  same  being  transmitted  to  the  Secretary 
of  State,  may,  if  she  think  fit  so  to  do,  express  her  royal  approval  of 
such  act  or  ordinance,  and  thereupon  may  issue  an  order  in  council  de- 
claring that,  so  long  as  the  provisions  of  such  act  or  ordinance  continue 
in  force  within  such  colony,  the  prohibitions  contained  in  the  above-men- 
tioned acts,  or  in  any  other  acts,  with  respect  to  foreign  reprints  of 
books  first  composed,  written,  printed  or  published  in  the  United  King- 
dom, and  entitled  to  copyright  therein,  shall  be  suspended  so  far  as 
regards  such  colony  ;  and  thereupon  such  act  or  ordinance  shall  come  into 
operation,  except  so  far  as  *may  be  otherwise  provided  there-  r»cO(^in 
in,  or  as  may  be  otherwise  directed  by  such  order  in  council. (^) 

By  acts  of  parliament  of  an  older  date,  copyright  has  also  been  created 
in  prints,  engravings,  maps,  charts  and  plans  for  the  term  of  tAventy- 
eight  years,  to  commence  from  the  day  of  first  publishing  thereof;  which 
day,  together  with  the  proprietor's  name,  is  to  be  truly  engraved  on  each 
plate,  and  printed  on  every  print.(m)^  But  these  acts  do  not  apply  to 
illustrative  wood  engravings  printed  on  the  same  sheet  as  the  letter-press 

(i)  Stat.  5  &  6  Vict.  c.  45,  s.  17. 

(j)  Stat.  8  &  9  Vict.  c.  93,  s.  9,  and  16  &  IT  Vict.  c.  107,  ss.  44,  160. 

(k)  Stat.  10  &  11  Vict.  c.  95. 

(I)  Several  British  colonies  have  obtained  Orders  in  Council  under  this  act.  See  6 
Jur.  N.  S.  pt.  2,  p.  45. 

(m)  Stat.  8  Geo.  II.  c.  13,  amended  by  7  Geo.  III.  c.  38,  and  rendered  more  effectual 
by  17  Geo.  III.  c.  57;  Gambart  v.  Sumner,  5  H.  &  N.  5 ;  Gambartv.  Ball,  14  C.  B.  N.  S. 
306  (E.  C.  L.  R.  vol.  108). 

1  See  ante,  p.  246,  note  1. 


251  OF  INCORPOREAL  PERSONAL  PROPERTY. 

of  a  book,  as  such  engravings  form  part  of  the  book  and  are  comprised 
within  its  copyright.(w)  Under  these  acts  the  assignee  of  the  copyright 
may  bring  an  action  in  his  own  name  against  any  person  who  may  pirate 
it.(o)  And  by  a  modern  statute(;?)  all  the  provisions  contained  in  these 
acts  are  extended  to  the  United  Kingdom  of  Great  Britain  and  Ireland. 
And  it  is  provided, (7)  that  if  any  person  shall,  during  the  existence  of 
the  copyright,  engrave,  etch  or  publish  any  engraving  or  print  of  any 
description  whatever,  either  in  whole  or  in  part,  already  published  in 
anv  part  of  Great  Britain  or  Ireland,  without  the  express  consent  of  the 
proprietor  or  proprietors  thereof  first  obtained  in  writing  signed  by  him, 
her  or  them  respectively,  with  his,  her  or  their  own  hand  or  hands,  in 
the  presence  of  and  attested  by  two  or  more  credible  witnesses,  then  every 
such  proprietor  may,  by  a  separate  action  upon  the  case,  to  be  brought 
.  against  the  person  so  offending,  *in  any  court  of  law  in  Great 
L  -^-J  Britain  or  Ireland,  recover  such  damages  as  the  jury  shall  assess, 
together  with  double  costs  of  suit.  By  a  more  recent  act  it  is  declared 
that  the  provisions  of  the  above-mentioned  statutes  are  intended  to  in- 
clude prints  taken  by  lithography,  or  any  other  mechanical  process  by 
which  prints  or  impressions  of  drawings  or  designs  are  capable  of  being 
multiplied  indefinitely.(r) 

By  other  acts  of  parliament  copyright  has  been  granted  to  the  makers 
of  new  and  original  sculptures,  models,  copies  and  casts  for  the  term  of 
fourteen  years  from  their  first  putting  forth  or  publishing  the  same,(s) 
with  a  further  term  of  fourteen  years  to  the  original  maker,  if  he  shall 
be  then  living  ;{t)  provided  that  in  every  case  the  proprietor  cause  his 
name,  with  the  date,  to  be  put  on  every  such  sculpture,  model,  copy  or 
cast  before  the  same  shall  be  put  forth  or  published.(M)^  And  it  is  also 
provided  that  no  person  who  shall  purchase  the  right  or  property  of  any 
such  sculpture,  model,  copy  or  cast  of  the  proprietor,  expressed  in  a  deed 
in  writing  signed  by  him  with  his  own  hand,  in  the  presence  of  and  at- 
tested by  two  or  more  credible  witnesses,  shall  be  subject  to  any  action 
for  copying,  casting  or  vending  the  same.(a;)  By  the  Designs  Act, 
1850,(//)  provision  has  been  made  for  the  registration  of  sculptures, 

(n)  Bogue  v.  Houlston,  5  De  G.  &  Sm.  267  ;  s.  c.   16  Jur.  272. 

(o)  Thompson  v.  Symonds,  5  Term  Rep.  41. 

(p)  Stat.  6  &  7  Will.  IV.  c.  59,  s.  1.        (?)  Sect.  2. 

(r)  Stat.  15  &  16  Vict.  c.  12,  s.  14. 

(s)  Stat.  38  Geo.  III.  c.  71,  amended  by  54  Geo.  III.  c.  56. 

{t)  Stat.  54  Geo.  III.  c.  56,  s.  6.  (m)  Sect.  1. 

(x)  Sect.  4.  (y)  Stat.  13  &  14  Vict.  c.  104,  s.  6. 

1  See  ante,  p.  246,  note  1. 


OF    PATENTS   AND    COPYRIGHTS.  252 

models,  copies  and  casts  within  the  protection  of  the  Sculpture  Copyright 
Acts,  which  registration  entitles  the  proprietor  of  the  copyright  to  certain 
penalties  in  case  of  piracy.(3)  And  with  regard  to  paintings,  drawings 
and  photographs,  it  is  now  provided  that  the  exclusive  right  of  copying, 
engraving,  ^reproducing  and  multiplying  them  by  any  means  r*253i 
and  of  any  size  shall  belong  to  the  author,  being  a  British  subject 
or  resident  within  the  dominions  of  the  Crown,  for  the  term  of  his  life 
and  seven  years  after  his  death, (a)  And  a  register  of  proprietors  'of 
copyright  in  paintings,  drawings  and  lithographs  is  established  at  Sta- 
tioners' Hall,  subject  to  similar  regulations  to  that  established  for  the 
registry  of  copyright  in  books.(6) 

By  an  act  of  parliament  recently  passed  to  amend  the  law  of  interna- 
tional copyright,(c)  her  Majesty  is  empowered  by  any  order  in  council 
to  grant  the  privilege  of  copyright  for  such  period  as  shall  be  defined  in 
such  order  (not  exceeding  the  terra  allowed  in  this  country),  to  the 
authors,  inventors  and  makers  of  books,  prints,  articles  of  sculpture  and 
other  works  of  art,  or  any  particular  class  of  them,  to  be  defined  in  such 
order,  which  shall,  after  a  future  time  to  be  specified  in  such  order,  be 
first  published  in  any  foreign  country,  to  be  named  in  such  order.^ 
And  her  Majesty  is  also  empowered(<i)  by  any  order  in  council  to  direct 
that  the  authors  of  dramatic  pieces  and  musical  compositions,  which  shall 
after  a  future  time  to  be  specified  in  such  order,  be  first  publicly  repre- 
sented or  performed  in  any  foreign  country  to  be  named  in  such  order, 
shall  have  the  sole  liberty  of  representing  or  performing  in  any  part  of 
the  British  dominions  such  dramatic  pieces  or  musical  compositions 
during  such  period  as  shall  be  defined  in  such  order,  not  exceeding  the 
period  allowed  in  this  country.  Provision  however  is  made  for  the  entry 
of  proper  particulars  of  the  subjects  for  which  copyrights  shall  be  granted 
in   the  register  book  of  the   Stationers'   Company  in  London,  Avithin  a 

(z)  Stat.  13  &  14  Vict.  c.  104,  s.  V.  {a)   Stat.  25  &  26  Vict.  c.  68,  s.  1. 

(b)  Sects.  4,  5,  ante,  p.  247. 

(c)  Stat.  7  &  8  Vict.  c.  12,  ss.  2,  3,  4,  extended  to  paintings,  drawings  and  photo- 
graphs by  Stat.  25  &  26  Vict.  c.  68,  s.  12. 

{d)  Stat.  7  &  8  Vict.  c.  12,  s.  5. 

1  An  international  copyright  has  never  prohibit  the  printing,  publishing,  importa- 

been  a  part  of  our  system,  and  it  was  vir-  tion,  or    sale    of   any  book,   map,   chart, 

tually  so  declared  by  the  eighth  section  of  dramatic    or  musical    composition,  print, 

the  Act  of  Congress  of  the  3d  of  February,  cut,   engraving,    or    photograph,   written, 

1841 ;  and  now  by  the  Act  of  the  8th  of  composed,  or  made  by  any  person  not  a 

July,  1870,   it  is    provided,  that   nothing  citizen  of  the  United  States,  nor  resident 

therein  contained   "  shall  be  construed  to  therein,"  sec.  103. 


253  OF   INCORPOREAL   PERSONAL    PROPERTY. 

r*-')KA-\  ^^"^^  *^  ^^  prescribed  in  each  such  *order  in  council. (e)  And  all 
^  "^  ■"  copies  of  books  wherein  there  shall  be  any  subsisting  copyright 
b^  virtue  of  this  act,  or  of  any  order  in  council  made  in  pursuance 
thereof,  printed  or  reprinted  in  any  foreign  country,  except  that  in 
which  such  books  were  first  published,  are  absolutely  prohibited  to  be 
imported  into  any  part  of  the  British  dominions,  except  with  the  consent 
of  the  rcnstcred  proprietor  of  the  copyright  thereof,  or  his  agent  author- 
ized in  writing.(/)  But  no  such  order  in  council  shall  have  any  effect 
unless  it  shall  be  therein  stated,  as  the  ground  for  issuing  the  same,  that 
due  protection  has  been  secured  by  the  foreign  power  named  in  such 
order  in  council  for  the  benefit  of  parties  interested  in  works  first  pub- 
lished in  the  dominions^of  her  Majesty,  similar  to  those  comprised  in 
such  order. (^)  And  every  such  order  in  council  is  to  be  published  in 
the  London  Gazette  as  soon  as  may  be  after  the  making  thereof,  and 
from  the  time  of  such  publication  shall  have  the  same  effect  as  if  every 
part  thereof  were  included  in  the  act. (A)  And  no  copyright  is  allowed 
to  any  book,  dramatic  piece,  musical  composition,  print,  article  of  sculp- 
ture or  other  w^ork  of  art,  first  published  out  of  her  Majesty's  dominions, 
otherwise  than  under  this  act.  A  convention  under  this  act  has  already 
been  effected  with  France,  the  stipulations  of  which  have  been  confirmed 
by  act  of  parliament. (f)  And  the  provisions  of  the  International  Copy- 
right Act  have  been  extended  to  authorized  translations  of  foreign  books 
for  a  term  not  exceeding  five  years  from  the  first  publication  of  such 
translations  ;(^)  also  to  authorized  translations  of  foreign  dramatic  pieces 
for  a  term  not  exceeding  five  years  from  the  time  at  which  the  author- 
ized translations  are  first  published  or  publicly  represented,(?)  but  so  as 
r^Qr-c-i  *not  to  prevent  fair  imitations  or  adaptations  to  the  English 
stage  of  any  dramatic  piece  or  musical  composition  published  in 
any  foreign  country. (wi) 

No  person  can  print  or  publish  any  newspaper  before  delivering  at  th 
Stamp  Office  a  declaration  containing,  amongst  other  things,  the  true 
name,  addition,  place  of  abode  of  the  printer  and  publisher,  and  of  every 
proprietor  resident  out  of  the  United  Kingdom,  and  also  of  every  pro- 
prietor resident  in  the  United  Kingdom,  if  their  number  shall  not  exceed 
two,  exclusive  of  the  printer  and  publisher;  and  if  their  number  should 
exceed  tAvo,  then  the  names  of  two  of  the  proprietors  must  be  given,  the 

(f)  Stat.  7  &  8  Vict.  c.  12,  ss.  6,  7,  8,  9 ;  Cassell  v.  Stiff,  2  Kay  &  J.  279. 

(/)  Sect.  10.  (ff)  Sect.  14. 

{h)  Sect.  15.  (i)  Stat.  15  &  16  Vict.  c.  12, 

(k)  Sects.  1,  2,  3,  4.  (l)  Sects.  4,  5. 

(m)  Sect.  6. 


OF    PATENTS    AND    COPYRIGHTS.  255 

amount  of  whose  shares  shall  not  be  less  than  the  share  of  any  other  pro- 
prietor resident  in  the  United  Kingdom,  exclusive  of  the  printer  and 
publisher ;  and  the  amount  of  their  shares  must  be  specified. (w)  Under 
this  act  if  one  person  holds  in  trust  for  another,  both  names  must  be 
mentioned  ;{o)  and  a  mortgagee  must  be  mentioned  also,  otherwise  the 
right  to  publish  the  newspaper  would  formerly  have  been  considered  as 
goods  of  the  mortgagee,  in  the  order  and  disposition  of  the  mortgagor, 
and  would  accordingly,  in  the  event  of  his  bankruptcy,  have  passed  to 
his  assignees. (j^)  But  this  appears  to  be  no  longer  the  case  under  the 
Bankruptcy  Act,  1869.(^y 

By  recent  statutes  a  copyright  has  been  granted  to  designs  for  articles 
of  manufacture  for  the  term  of  three  years,  one  year,  or  nine  calendar 
months,  according  to  the  nature  of  the  manufacture  ;(r)  and,  in  pursu- 
ance of  *these  acts,  a  registrar  of  designs  for  articles  of  manu-  r*256-] 
facture  has  been  appointed,  by  whom  all  designs  to  be  protected 
by  the  acts  are  required  to  be  registered  ;(s)  and  provision  is  also  made 
for  the  transfer  of  the  copyright  in  such  designs  by  any  writing  purport- 
ing to  be  a  transfer,  and  signed  by  the  proprietor,  and  also  for  the  reg- 
istration of  transfers  in  a  prescribed  form.(f)  These  acts  have  been  ex- 
tended and  amended  by  the  Designs  Act,  1850,(w)  which  provides  for 
the  "  provisional  registration  "  of  designs  for  the  term  of  one  year,  and 
empowers  the  Board  of  Trade  to  extend  the  copyright  in  ornamental  de- 
signs for  such  term,  not  exceeding  the  additional  term  of  three  years,  as 
the  board  may  think  fit.(v)  A  more  recent  statute  extends  the  copyright 
to  certain  ornamental  designs,(a;)  and  provides  for  the  registration  of  any 
pattern  or  portion  of  any  article  of  manufacture  instead  of  a  drawing  or 

(«)  Stat.  6  &  7  Will.  IV.  c.  76,  s.  6.  (o)  Harmer  v.  Westmacott,  6  Sim.  284. 

(p)  Longman  v.  Tripp,  2  Bos.  &  Pull.  N.  R.  67  ;  Ex  parte  Foss,  Re  Baldwyn,  2  De  G. 
&  J.  230. 

(q)  Stat.  32  &  33  Vict.  c.  71,  ante,  p.  54. 

(r)  Stat.  5  &  6  Vict.  c.  100,  by  which  all  the  previous  statutes  were  consolidated,  and 
6  &  7  Vict.  c.  65 ;  21  &  22  Vict.  c.  70  ;  24  &  25  Vict.  c.  73. 

(s)  Stat.  6  &  7  Vict.  c.  65,  ss.  7,  8,  9. 

(t)  Stats.  5  &  6  Vict.  c.  100,  s.  6 ;  6  &  7  Vict.  c.  65,  s.  6. 

(m)  Stat.  13  &  14  Vict.  c.  104.  See  also  stats.  14  &  15  Vict.  c.  8,  extended  by  stat. 
15  &  16  Vict.  c.  6. 

(v)  Stat.  13  &  14  Vict.  c.  104,  s.  9.  (z)  Stat.  21  &  22  Vict.  c.  70,  s.  3. 


1  By  the  fourteenth  section  of  the  Bank-  signee  all  the  bankrupt's  rights  in  patents 

rupt  Law  of  the  United  States,  the  adjudi-  and     patent-rights,     and     copyrights:     2 

cation  of  bankruptcy  and  the  appointment  Brightly's  U.  S.  Dig.,  p.  81,  sec.  26. 
of  his  assignee,  at  once  vests  in  said  as- 


256  OF   INCORPOREAL    PERSONAL    PROPERTY. 

dcscription.(?/)     It  also  enables  proceedings  for  piracy  to  be  brought  in 
the  county  conTt.{z) 

The  marks  often  used  by  manufacturers  to  designate  goods  made  by 
them  resemble  copyright  as  a  subject  of  property  ;(a)  and  the  Court  of 
Chancery  will  restrain  a  third  person  from  passing  off  his  own  goods  as 
those  made  by  another,  by  the  use  of  that  other  person's  trade  mark. 
r*9C7-|  And  when  a  business,  with  the  machinery  *and  trade  marks,  is 
assigned  from  one  person  to  another,  the  assignee  has  the  same 
rifht  as  the  assignor  had  before  to  prevent  others  from  using  the 
marks. (i)  A  trade  mark  may  belong  to  particular  works  as  Avell  as  to 
particular  persons. (c)  But  those  who  themselves  deceive  the  public  can- 
not prevent  others  from  using  their  marks.(c^)  A  recent  act  of  parlia- 
ment has  amended  the  law  relating  to  the  fraudulent  marking  of  mer- 
chandise,(e)  and  has  made  the  forging  of  trade  marks  or  their  wrongful 
application  to  articles  of  merchandise  a  misdemeanor.(/)^      And  every 

(ij)  Stat.  21  &  22  Vict.  c.  70,  s.  5.  (z)  Sects.  8,  9. 

(a)  Hall  V.  Burrows,  L.  C,  10  Jur.  N.  S.  55  ;  Leather-Cloth  Company,  Limited,  v. 
American  Leather-Cloth  Companj',  Limited,  H.  of  L.,  13  W.  R.  373;  11  Jur.  N.  S.  513. 
See,  however,  Collins'  Company  v.  Brown,  3  Kay  &  J.  423. 

(6)  Edelston  v.  Tick,  11  Hare  78.  (c)  Motley  v.  Downman,  3  Myl.  &  Cr.  1. 

(d)  Pidding  v.  How.  8  Sim.  477  ;  Perry  v.  Truefitt,  6  Beav.  66  ;  Leather-Cloth  Com- 
pany, Limited,  v.  American  Leather-Cloth  Company,  Limited,  13  W.  R.  873  ;  11  Jur. 
N.  S.  513. 

(e)  Stat.  25  &  26  Vict.  c.  88.  (/)  Sects.  2,  3. 

1  By  the  statute  law  of  the  United  States  thereof;  and  the  mode  in  which  it  is  to  be 
on  the  subject  of  trade  marks,  "  any  per-  used ;  the  time  it  has  been  used,  and 
son  or  firm  domiciled  in  the  United  States,  such  other  regulations  as  are  prescribed  in 
and  any  corporation  created  by  the  au-  the  manner  therein  provided  ;  such  exclu- 
thority  of  the  United  States,  or  of  any  sive  use  to  continue  for  the  period  of 
state  or  territory  thereof,  and  any  person,  thirty  years,  except  where  claimed  for,  or 
firm  or  corporation  resident  of,  or  located  applied  to,  articles  not  manufactured  in 
in  any  foreign  country,  which  by  treaty  or  this  country,  and  in  which  it  receives  pro- 
convention  affords  similar  privileges  to  tection  under  the  laws  of  any  foreign 
citizens  of  the  United  States,  and  who  are  country  for  a  shorter  period,  in  which  case 
entitled  to  the  exclusive  use  of  any  lawful  it  will  cease  here  when  it  ceases  to  have 
trade  mark,  or  who  intend  to  adopt  and  any  effect  elsewhere  ;  and  the  privilege  of 
within  the  United  States,  may  obtain  be  renewed  for  a  like  period  of  thirty 
use  any  trade  mark  for  exclusive  use  the  exclusive  use  of  such  trade  mark  may 
protection  for  such  lawful  trade  mark,  by  years :  Act  of  July  8,  1870,  sec.  77,  78^ 
complying  with"  certain  specified  require-  Stats,  at  Large  (1869-1870),  p.  210,  &c. 
ments,  such  as  recording  in  the  Patent  Independently  of  statutory  regulation 
OflBce  the  name,  residence,  and  place  of  there  is  a  property  in  trade-marks  :  Der- 
business  of  the  applicant;  the  merchan-  ringer  v.  Plate,  29  Cal.  292;  Bradley  v. 
dise  to  which  it  is  to  apply;  the  descrip-  Norton,  33  Conn.  157. 
tion  of  the  trade  mark,  with  a  fac  simile  Equity  will  enjoin  against  the  pirating 


OF   PATENTS   AND    COPYRIGHTS. 


257 


person  who  now  contracts  to  sell  any  article  with  any  trade  mark  thereon 
is  deemed  to  warrant  that  such  mark  is  genuine,  unless  the  contrary  be 
expressed  in  some  writing  signed  by  or  on  behalf  of  the  vendor,  and  de- 
livered to  and  accepted  by  the  purchaser. (^)  And  the  same  provision 
has  been  made  with  respect  to  any  description,  statement  or  other  indi- 
cation of  or  respecting  the  number,  quantity,  measure  or  weight  of  any 
article,  or  the  place  or  country  in  which  it  shall  have  been  made  or 
produced.  (/«)^ 


(ff)  Stat.  25  &  26  Vict.  c.  88,  s.  19. 


(A)  Sect.  20. 


of  a  trade-mark,  where  there  is  between 
the  original  and  tlie  imitation  marks,  such 
resemblance  as  would  mislead  purchasers 
using  ordinary  prudence  and  caution : 
CoUadaj  v.  Baird,  Common  Pleas  of  Phila- 
delphia, 17  Leg.  Intel.  365 ;  Barnet  v. 
Phalon,  9  Bosw.  192  ;  but  chancery  will 
not  interfere  in  such  questions,  so  as  to 
restrain  a  manufacturer  from  putting  his 
name  upon  goods  because  it  is  the  same 
as  another  manufacturer  :  Faber  v.  Faber, 
49  Barb.  357  ;  or  an  owner  of  goods  from 
putting  his  trade-mark  thereon,  though 
it  may  contain  the  name  of  the  manufac- 
turer :  Walton  v.  Crowley,  3  Blatch.  C.  C. 
440 ;  these  being  cases  where,  from  the 
circumstances  of  each,  the  injury  sus- 
tained must  be  without  a  remedy ;  or  be- 
tween the  vendors  of  patent  medicines, 
being  quack  medicines,  the  questions  in 
these  cases  having  too  little  merit  to  com- 
mend them  on  either  side :  Heath  v. 
Wright,  3  Wall.  Jr.  141. 

1  For  some  decisions  on  the  law  of  copy- 
right anterior  to  the  Act  of  the  eighth  of 
July,  1870,  see  the  following  cases : 
There  can  be  no  copyright  of  an  abstract 
idea;  a  thing  invented,  but  not  visible  to 
others ;  the  invention  must,  in  addition, 
have  been  designed  or  represented  in  some 
visible  form  :  Binns  v.  Woodruff,  4  Wash. 
C.  C.  48  ;  and  it  must  be  of  something 
new  and  original,  and  not  merely  a  copy 
from  something  already  produced,  with 
only  such  alterations  as  a  person  of  skill 
and  experience  could  readily  make  :  Jollin 
V.  Jacques  et  al.,  1  Blatchf.  G18  ;  Webb  et 
al.  V.  Powers  et  al.,  2  Wood.  &  M.  497  ;  but 
it  matters  not  whether  the  materials  of  the 


compilation  be  new  or  old  :  Emerson  v. 
Davies  et  al.,  3  Story  768  ;  for  every  one 
may  have  the  right  to  use  the  materials, 
and  yet  the  compilation  be  the  subject  of 
copyright :  Gray  et  al.  v.  Russell  et  al.,  1 
Story  11 ;  Atwill  v.  Ferrett,  2  Blatch.  C.  C. 
39  ;  Greene  v.  Bishop,  1  Clifif.  C.  C.  186. 
But  a  distinction  is  to  be  noticed  between 
a  compilation  and  an  abridgment,  for  if  a 
compilation  be  made  of  materials  which 
are  not  open  to  all,  but  of  the  work  of 
another,  for  which  a  copyright  has  been 
obtained,  it  is  an  infringement  of  that 
right :  Webb  et  al.  v.  Powers  et  al.,  2 
Wood.  &  M.  497  ;  but  an  abridgment,  being 
not  a  mere  compilation  of  the  work  of 
another,  but  a  substantial  condensation  of 
the  materials  of  the  original  work,  re- 
quiring intellectual  ability,  and  judgment 
and  labor,  is  not  an  infringement  of  a  copy- 
right, but  is  itself  a  subject  of  copyright, 
notwithstanding  a  copyright  has  been  ob- 
tained by  the  author  of  the  previous  work, 
of  which  it  is  an  abridgment:  Folsom  et 
al.  V.  Marsh  et  al.,  2  Story  100 ;  Story's 
Exrs.  V.  Holcombe  et  al.,  4  McLean  306. 

By  the  common  law,  an  author  has  a 
property  in  his  manuscript,  so  long  as  he 
does  not  abandon  it  to  the  public :  Bart- 
lette  V.  Crittenden  et  al.,  4  McLean  300  ; 
Wheaton  et  al  v.  Peters  et  al.,  8  Peters 
591  ;  Banker  v.  Caldwell,  3  Min.  94;  and 
if  he  publishes  his  work,  he  dedicates  it 
to  the  public  :  Bartlette  v.  Crittenden,  5 
McLean  32  ;  or  the  representation  of  a  play 
in  a  public  place  of  amusement,  is  a  sur- 
render of  it  to  the  public,  so  far  as  it  can 
be  retained  in  the  memory  without  the  use 
of  notes  :  Keene  v.  Clarke,  5  Rob.  38;  but 


257 


OF    INCORPOREAL    PERSONAL    PROPERTY. 


Connected  with  tlie  subject  of  trade  marks  is  that  of  goodwill.  The 
good^Yill  of  a  trade  or  business  is  often  of  great  value.  It  comprises 
every  advantage  -which  has  been  acquired  by  carrying  on  the  business, 
whether  connected  with  the  premises  in  which  the  business  has  been  car- 
ried on,  or  with  the  name  of  the  firm  by  whom  it  lias  been  conducted. (2) 


[*258] 


On  the  dissolution  of  *a  partnership,  each  partner  has  a  right. 


in  the  absence  of  any  stipulation  to  tiie  contrary,  to  use  the  name 
of  the  old  firm  ',{k)  and  if  there  be  a  stipulation  that,  in  case  of  the  decease 
of  one  partner,  the  surviving  partner  shall  take  the  stock  or  capital  at  a 
valuation,  the  goodwill  must  be  included  in  such  valuation. (?)  The  sale 
of  the  goodwill  of  a  business  Avill  not  prevent  the  vendor  from  setting  up 
the  same  business  on  his  own  account,  even  in  immediate  proximity  to 
the  premises  on  which  the  old  business  has  been  carried  on  ;(w)  so  that 

(i)  Churton  v.  Douglas,  Johnson  174. 

(k)  Banks  v.  Gibson,  M.  R.  11  Jur.  N.  S.  680  ;  34  L.  J.  Chan.  179  ;    13  W.  R.  1012. 

(l)  Hall  V.  Barrows,  M.  R.  9  Jur.  N.  S.  483,  affirmed  by  L.  C.  10  Jur.  N.  S.  55. 

(jn)  Cruttwell  v.  Lye,  17  Ves.  335  ;  Hall  v.  Barrows,  Churton  v.  Douglas,  ubi  supra. 


this  last  proposition  has  been  denied  in 
Boucicault  v.  Fox,  5  Blatch.  C.  C.  87, 
which  holds  that  an  author  does  not  aban- 
don any  of  his  rights  in  a  play,  by  con- 
senting to  its  public  representation  while 
in  manuscript  and  before  it  is  copyrighted. 
The  sending  of  a  letter  by  post,  is  not  con- 
sidered as  an  abandonment  of  it,  and  the 
sole  right  of  publishing  still  remains  in 
the  author:  Denis  v.  Leclere,  1  Mart.  (La.) 
297  ;  Folsom  et  al.  v.  Marsh  et  al.,  2  Story 
100;  Wetmore  v.  Scovell  et  al.,  3  Edw. 
Ch.  515 ;  Grigsby  v.  Breckinridge,  2 
Bush  480 ;  and  in  accordance  with  the 
same  principle  it  has  been  held,  that 
where  a  manuscript  had  been  used  for  the 
purposes  of  instruction,  the  author  had 
not  thereby  abandoned  it,  even  though  the 
pupils  had  taken  copies  of  it :  Bartlette  v. 
Crittenden  etal.,  4  McLean  300. 

The  case  of  Stephens  v.  Cady,  14  How. 
529,  decides  that  a  copyright  is  not  the 
subject  of  an  execution  at  common  law. 
A  copper-plate  engraving  was  taken  in  ex- 
ecution, and  Justice  Nelson,  in  his  opinion, 
remarks,  "  The  copper-plate  engraving, 
like  any  other  tangible  personal  property, 
is  the  subject  of  seizure  and  sale,  on  exe- 
cution. And  the  title  passes  to  the  pur- 
chaser, the  same  as  if  made  at  a  private 


sale.  But  the  incorporeal  right,  secured 
by  the  statute  to  the  author,  to  multiply 
copies  of  his  map,  by  the  use  of  the  plate, 
being  intangible,  and  resting  altogether  in 
grant,  is  not  the  subject  of  seizure  and 
sale  by  means  of  this  process — certainlj' 
not  at  common  law.  No  doubt  the  pro- 
perty may  be  reached  by  a  creditor's  bill, 
and  be  applied  to  the  payment  of  the  debts 
of  the  author,  the  same  as  stock  of  the 
debtor  is  reached  and  applied,  the  court 
compelling  a  transfer  and  sale  of  the  stock 
for  the  benefit  of  the  creditors." 

And  see  also  Stevens  v.  Gladding,  17 
How.  447. 

On  the  subject  of  infringement  of  copy- 
right, see  Backus  v.  Gould  et  al.,  7  How. 
798 ;  Story's  Exrs.  v.  Holcombe  et  al.,  4 
McLean  306;  JoUin  v.  Jacques  et  al.,  1 
Blatchf.  618  ;  Webb  et  al.  v.  Powers  et  al., 
2  Wood.  &  M.  497;  Blunt  v.  Patten,  2 
Paine  C.  C.  393  ;  Little  v.  Gould,  2  Blatchf. 
C.  C.  165,  362  ;  Stowe  v.  Thomas,  2  Wall. 
Jr.  547  ;  in  this  last  case,  which  is  one  of 
the  more  recent  on  the  subject  of  copy- 
right, it  was  decided  that  the  translation 
into  another  language,  of  a  book  for  which 
a  copyriglit  was  granted,  was  not  an  in- 
fringement of  that  right. 


OP   PATENTS   AND   COPYRIGHTS.  258 

the  purchaser  should,  in  such  cases,  ahvays  insist  on  a  covenant  being 
entered  into  by  a  vendor  not  to  carry  on  the  business  within  so  many 
miles  of  the  old  premises,  which  covenant  as  we  have  seen,(7i)  is  valid. 
And  in  a  recent  case,  where  the  goodwill  of  a  partnership  business  was 
ordered  to  be  sold  by  the  Court,  a  notice  was  directed  to  be  inserted  in 
the  advertisements  and  particulars  of  sale,  that  the  sale  would  not  pre- 
vent any  person  theretofore  interested  in  the  business  from  carrying  on 
the  like  business  in  the  same  town.(o)^ 

(n)  Ante,  p.  91.  (o)  Johnson  v.  Helleley,  2  De  G.  J.  &  S.  446. 

1  But  good  faith  requires  that  the  vendor  advertisement  or  otherwise,  as  continuing 

of  a  goodwill   should  do  nothing  which  his  former  business,  or  as   carrying  it  on 

directly  tends  to  deprive  his  vendee  of  its  at  another  place  :  Hall's  Ap.,  60  Penn.  St. 

benefits  and   advantages,   and   hence    he  458.     As  to    what  constitutes  good  will, 

cannot  hold  himself  out  to  the  public  by  see  Musselman's  Ap.,  62  Id.  81. 


r*259]  '^TART  IV. 

OF  PERSONAL  ESTATE  GENERALLY. 


CHAPTER  L 

OF   SETTLEMENTS    OF    PERSONAL   PROPERTY. 

Personal  property  is  capable  of  being  settled,  but  not  in  the  same 
manner  as  land.  Land,  being  held  by  estates,  is  settled  by  means  of 
life  estates  being  given  to  some  persons,  with  estates  in  remainder  in  tail 
and  in  fee  simple  to  others.  But  personal  property,  as  we  have  already 
observed, (a)  is  essentially  the  subject  of  absolute  ownership.  The  set- 
tlement of  such  property,  by  the  creation  of  estates  in  it,  cannot  there- 
fore be  accomplished.  And  there  is  a  striking  difference  in  many  cases 
between  the  effect  of  the  same  limitation,  according  as  it  may  be  applied 
to  real  or  to  personal  property. 

As  there  can  be  no  estate  in  personal  property,  it  follows  that  there 
can  be  no  such  thing  as  an  estate  for  life  in  such  property  in  the  strict 
meaning  of  the  phrase.  Thus,  if  any  chattel,  whether  real  or  personal, 
be  assigned  to  A.  for  his  life,  A.  will  at  once  become  entitled  in  law  to 
the  whole.  By  the  assignment,  the  property  in  the  chattel  passes  to 
him,  and  the  law  knows  nothing  of  a  reversion  in  such  chattel  remaining 
in  the  assignor.  And  this  is  the  case  even  though  the  chattel  be  a  term 
of  years  of  such  length  (for  instance  1000  years)  that  A.  could  not  possi- 
r*opoi  ^^y  '''^'^  ^^  'ong.(^^)'  The  term  is  ^considered  in  law  as  an  indi- 
'-  *"  visible  chattel,  and  consequently  incapable  of  any  such  modifica- 

tion of  owner:?hip  as  is  contained  in  a  life  estate. 

(a)  Ante,  p.  7.  (6)  2  Prest.  Abs.  5. 

1  A  term  of  years,  whether  for  one  year,  ow  and  Heirs  of  Reynolds  v.  The  Conimis- 

or  for  one  thousand,  is  personal  property:  sioners  of  Stark  Co.,  5  Ohio  204  ;  Field  v. 

Petition   of  Timothy  Gray,  5   Mass.  419 ;  Howell,  G  Geo.   423  ;   Williams's  E.\rs.   v. 

Brewster  I'.  Hill,  1  N.  H.  350;  Dillingham  The  >Mayor,  &c.,  of  Annapolis,  6   Har.  & 

V.  Jenkins,  7  Sm.  &  Mars.  487  ;  The  Wid-  Johns.  529  ;  although   the  legislatures  of 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY. 


260 


An  apparent  exception  to  the  above  rule  has  long  been  established  in 
the  case  of  a  bequest  by  will  of  a  tei'm  of  years  to  a  person  for  his  life : 


some  of  the  States  have  enacted,  that  un- 
der certain  circumstances,  they  shall  be 
considered  real  property,  and  in  other 
States,  they  have  been  made  subject  to 
the  rules  and  regulations,  prescribed  with 
respect  to  real  estate  .  thus,  by  the  Re- 
vised Statutes  of  Mass.,  1860,  ch.90,  ?  20, 
p.  471,  "  When  land  is  demised  for  the 
term  of  one  hundred  years  or  more,  the 
term  shall,  so  long  as  fifty  years  of  the 
same  remain  unexpired,  be  regarded  as  an 
estate  in  fee  simple,  as  to  everything  con- 
cerning the  descent  and  devise  thereof, 
upon  the  decease  of  the  owner,  the  right 
of  dower  therein,  and  the  sale  thereof  by 
executors,  administrators,  or  guardians, 
by  license  from  any  court ;  and  also  con- 
cerning the  levy  of  executions  thereon, 
and  the  redemption  thereof,  when  taken 
in  execution  or  when  mortgaged;"  and 
by  Revis.  Stats,  of  N.  Y.  3d  V^ol.  (5th  ed.), 
p.  12,  §  24,  "  A  freehold  estate,  as  well  as 
a  chattel  real,  may  be  created  to  com- 
mence at  a  future  day ;  an  estate  for  life 
may  be  created  in  a  term  of  years,  and  a 
remainder  limited  thereon  ;  a  remainder 
of  a  freehold  or  chattel  real,  either  con- 
tingent or  vested,  may  be  created  expec- 
tant on  the  determination  of  a  term  of 
years."  In  Ohio,  "  Permanent  leasehold 
.  estates,  renewable  forever,  shall  be  subject 
to  the  same  law  of  descent  and  distribu- 
tion, as  estates  in  fee  are  or  may  be  sub- 
ject to;"  Ohio  Revis.  Stats.  (1860),  ch, 
36,  ^  20,  p.  505,  and  ch.  87,  |  1,  p.  1142. 
The  laws  of  Pennsylvania,  enjoin  the  re- 
cording of  leases  for  a  longer  term  than 
twenty-one  years,  as  deeds  of  lauds  are 
recorded:  Purd.  Dig.,  by  Brightly  (1861), 
p.  321,  ^^  2  and  3.  The  General  Stats,  of 
N.  H.  (1867),  p.  252,  g  4,  contain  a  simi- 
lar provision  with  respect  to  leases  of  a 
longer  duration  than  seven  years  :  and  the 
Stats,  of  Vt.  (1839),  p.  312,  §  6,  fix  the 
term  of  years  which  must  be  acknowl- 
edged by  the  grantor,  and  recorded,  at 
any  period  greater  than  one  year.  In 
Maryland  a  leasehold  estate  under  a  lease 


for  ninety-nine  years,  renewable  forever, 
so  far  partakes  of  the  realty  that  the  title 
can  only  pass  by  deed  executed  with  all 
the  solemnities  which  are  prescribed  for 
the  sale  of  real  estate,  and  a  vendor's  lien 
for  the  purchase  money  of  such  an  estate 
may  be  enforced  in  equity :  Beatt  v.  Beatt, 
21  Md.  578.     See  ante,  p.  2,  note  1. 

Notwithstanding  the  statute  of  Ohio 
making  permanent  leaseholds  subject  to 
all  the  laws  and  rules  applicable  to  land, 
with  regard  to  descent  and  distribution, 
it  is  still  to  be  doubted  whether  they  are 
to  be  regarded  as  realty  in  that  State  :  the 
early  case  of  The  Lessee  of  Bisbee  v.  Hall, 
3  Ohio  465,  which  occurred  before  the 
enactment  of  the  statute  above  referred 
to,  decided  that  leases  were  subject  to  the 
laws  of  personal  property  ;  the  subsequent 
case  of  Murdock  et  al.  v.  Ratcliffe,  7  Ohio 
123,  in  interpreting  a  statute  then  in 
force,  which  declared  that  the  tenants  or 
lessees,  should  enjoy  all  the  rights  and 
privileges  which  they  would  be  entitled 
to  enjoy,  did  they  hold  their  lands  in  fee 
simple,  says,  this  provision  was  "  de- 
signed, in  our  opinion,  to  secure  to  ten- 
ants, civil  and  political  privileges,  not  to 
change  the  quality  of  their  estates."  ■ 

It  having  been  enacted,  that  permanent 
leasehold  estates,  should  be  subject  to  the 
laws  of  real  estate,  as  to  descent  and  dis- 
tribution, it  was  ruled  in  Loring  v.  Mc- 
Clendy  et  al.,  11  Ohio  335,  that  a  perma- 
nent leasehold  estate  is  not  a  chattel,  but 
realty ;  which  is  shaken,  if  not  overruled, 
in  The  Lessee  of  Boyd  et  al.  v.  Talbert,  12 
Ohio  213,  where  Chief  Justice  Lane  re- 
marks :  "  The  question  whether  a  lease 
be  realty  or  personalty,  need  not  be  here 
determined ;  but  I  take  the  opportunity  to 
express  my  apprehension,  that  the  case 
reported  last  year"  (Loring  ?;.  McClendy 
etal.,  11  Ohio  355)  "does  not  conclude 
this  point,  and  I  shall  be  ready  to  consider 
it  when  it  becomes  necessary."  This  is 
followed  by  The  Northern  Bank  of  Ken- 
tucky V.   Roosa,   13  Ohio   334,  explaining 


260 


OF   PERSONAL   ESTATE   GENERALLY. 


in  this  case  the  intention  of  the  testator  is  carried  into  effect  by  the 
application   of  a  doctrine  similar  *to  that  of  executory  devises  of  real 


Loring  i'.  McClendy,  and  deciding  that 
judgments  are  liens,  without  levy,  for  one 
year,  on  permanent  leaseholds  as  upon 
other  real  estate. 

And  this  doubt  is  perhaps  increased, 
by  the  opinion  of  Spalding,  J.,  in  the  case 
of  Buckingham  v.  Reeve  et  al.,  19  Ohio 
399,  wherein  he  says,  that  if  he  was  called 
upon  to  decide  the  question  directly,  he 
should  hesitate  to  say  that  a  judgment  at 
law  would  have  a  lien  upon  any  leasehold 
estate  whatever ;  and  adds  further,  that 
the  law  then  in  force  in  Ohio  regulating 
permanent  leaseholds,  had  "  respect  only 
to  the  treatment,  after  an  order  of  sale,  or 
the  levy  of  an  execution."  But  in  Phillips 
et  al.  V.  Knox  County  Mutual  Insurance 
Company,  20  Ohio  181,  it  was  said,  that 
■where  a  lease  had  been  made  for  ninety- 
nine  years,  it  was  equivalent  to  the  fee. 
And  see  also  McAlpin  v.  Woodruff,  11 
Ohio  120. 

Strictly  speaking,  there  cannot  be  a 
limitation  of  personal  property  after  an 
estate  for  life  in  it ;  nevertheless,  this  may 
be  attained  by  means  of  an  executory 
.  devise,  or  deed  of  trust :  Cooper  v.  Cooper, 
2  Brevard  355 ;  and  the  only  question  to 
be  determined,  in  order  to  decide  upon 
the  validity  of  the  limitation,  is,  whether 
it  tends  to  create  a  perpetuity :  that  is, 
whether  it  is  impossible  for  it  to  take 
effect,  and  be  executed,  within  a  life  or 
lives  in  being,  and  twenty-one  years  added 
to  the  period  of  gestation,  afterwards  ;  if 
it  will,  it  is  a  valid  limitation :  Griggs  v. 
Dodge,  2  Day  28  ;  Taber  v.  Packwood,  Id. 
52 ;  Nevison  et  al.  v.  Taylor,  Admr.,  3 
Halst.  43 ;  Home  et  al.  v.  Lycth,  4  Har.  & 
Johns.  431 ;  Keating  v.  Reynolds,  Bay 
80;  Cordle's  Admr.  v.  Cordle's  Exr.,  6 
Munf.  455;  Timberlake  v.  Graves,  Id.  174; 
Drury  et  al.  v.  Grace,  2  Har.  &  Johns.  356; 
Jackson  v.  Blanshaw,  3  Johns.  292;  Pater- 
son  V.  Ellis's  Exrs.,  11  Wend.  259;  Scott, 
Exr.,  V.  Price,  Exr.,  2  S.  &  R.  59 ;  Miffiin^. 
Neal,  Admr.,  G  Id.  460  ;  Cassilly  et  al.  v. 
Meyer  et  al.,  4  Md.  1 ;   Hubley  v.  Long,  2 


Grant's  Cas.  268 ;  Ingram  v.  Smith,  1 
Head  (Tenn.)  411;  Thornton  v.  Burch, 
20  Ga.  191  ;  Condict  v.  King,  2  Bcasley 
(N.  J.)  375. 

In  Home  et  al.  v.  Lyeth,  4  Har.  &  Johns. 
431,  Chief  Justice  Dorsey  uses  the  follow- 
ing words  :  "  Having  thus  briefly  examined 
what  would  have  been  the  operation  of 
this  bequest,  if  the  subject-matter  had 
been  a  frank-tenant  (and  in  doing  this,  we 
were  necessarily  led  upon  an  inquiry  con- 
cerning the  meaning  and  legal  effect,  of 
the  word  '  heirs '  and  '  heirs  of  the  body,' 
when  limited  upon  a  preceding  estate  of 
freehold),  we  shall  now  consider  the  be- 
quest as  applicable  to  chattel  interest,  or 
leasehold  property. 

"  At  one  period  of  our  law,  if  a  term  for 
years  or  chattel  was  bequeathed  to  one  for 
life,  and  after  his  death  to  a  third  person, 
the  ulterior  limitation  was  considered  void, 
and  the  whole  interest  of  the  term  or  thing, 
became  vested  in  the  first  devisee  ;  but  in 
process  of  time,  this  doctrine  was  aban- 
doned, and  courts  of  justice,  on  grounds 
of  general  utility  and  public  convenience, 
sustained  the  superadded  limitation  as  an 

executory    devise If    a   leasehold 

estate  is  limited  to  one  for  life,  remainder 
to  the  '  heirs  of  his  body,'  the  whole  inter- 
est vests  in  the  first  taker,  and  the  words 
'for  life,'  will  not  be  sufficient  to  restrain 
his  interest  to  a  life  estate.  But  if  words 
of  limitation  are  superadded  to  the  words 
'  heirs  of  the  body,'  such  additional  limita- 
tion is  considered  as  indicative  of  au  in- 
tention, to  give  only  a  life  estate 

If  the  words  'heirs  of  the  body'  (which 
naturally  point  to  children  and  their  de- 
scendants), are  considered  as  words  of 
limitation,  and  enlarge  the  estate  of  the 
first  devisee  to  an  absolute  interest,  why 
should  not  the  word  '  heirs,'  so  compre- 
hensive in  its  signification,  give  as  great 
an  interest?" 

In  accordance  with  the  doctrine,  that  if 
personal  property  be  given  to  one  for  life, 
remaiuder  to  his  heirs,  or  to  the  heirs  of 


I 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY. 


260 


estates,  (c)  The  whole  term  of  years  is  considered  as  vesting  in  the 
legatee  for  life,  in  the  same  manner  as  under  an  assignment  by  deed ; 
but  on  his  decease  the  term  is  held  to  shift  away  from  him,  and  to  vest, 
by  way  of  executory  bequest,  in  the  person  to  be  next  entitled.(rZ)  Ac- 
cordingly, if  a  term  of  years  be  bequeathed  to  A.  for  his  life, 'and  after 
his  decease  to  B.,  A.  will  have,  during  his  life,  the  whole  term  vested  in 
him,  and  B.  will  have  no  vested  estate,  but  a  mere  possibility,  as  it  is 
termed,(e)  until  after  the  decease  of  A.  ;  and  this  possibility,  like  the 
possibility  of  obtaining  a  real  estate,  was  formerly  inalienable  at  law 
unless  by  will,(/)  though  capable  of  assignment  in  equity.(^)  But  by 
the  act  to  amend  the  law  of  real  property,(A)  which  repeals  an  act  of  the 
previous  session  passed  for  the  same  purpose, (if)  it  is  provided  that  an 

(c)  See  Principles  of  the  Law  of  Real  Property  249,  2d  ed. ;  256,  3d  ed. ;  259,  4th 
ed. ;  270,  5th  ed. ;  284,  6th  ed.  ;  292,  7th  ed. ;  301,  8th  ed. 

{d)  Matthew  Manning's  Case,  8  Rep.  95  ;  Lampert's  Case,  10  Rep.  47. 

(e)  See  Princeples  of  Law  of  the  Real  Property  223,  2d  ed. ;  230,  3d  ed.  ;  231,  4th 
ed. ;  240,  5th  ed.  ;  250,  6th  ed.  ;    256,  7th  ed.  ;  267,  8th  ed. 

(/)  Shep.  Touch.  230.  {g)  Fearne,  Cont.  Rem.  548. 

(A)  Stat.  8  &  9  Vict.  c.  106,  s.  6.  {i)  Stat.  7  &  8  Vict.  c.  76,  s.  5. 


his  body,  he  will  take  absolutely,  unless 
there  be  words  to  show  that  only  an  estate 
for  life  was  intended,  see  the  following 
cases :  Keating  v.  Reynolds,  1  Bay  80 ; 
Exrs.  of  Moffat  v.  Strong,  10  Johns.  12; 
Guery  v.  Vernon,  1  Nott  &  McC.  09  ;  Dott 
et  al.  V.  Cunnington,  1  Bay  453  ;  Powell  v. 
Glenn  et  al.,  21  Ala.  458  ;  Durden's  Admr. 
V.  Burns's  Admr.  et  al.,  6  Id.  363  ;  Cruger 
et  al.  V.  Heyward,  Exr.,  et  al.,  2  Dessaus. 
94;  McGran  v.  Davenport,  6  Port.  319; 
Williams  v.  Graves,  Exr.,  17  Ala.  62; 
Ewing  V.  Standifer  et  al.,  18  Id.  400; 
Woodley  v.  Findlay  et  al.,  9  Id.  716; 
Machen  v.  Machen,  15  Id.  373;  Powell  v. 
Brandon,  24  Miss.  344;  Barker  v.  Crosby, 
32  Barb.  184;  Rewalt  v.  Ulrich,  23  Penn. 
St.  388  ;  Amelia  Smith's  Ap.,  Id.  9  ;  Moore 
V.  Brooks,  12  Gratt.  135  ;  but  very  slight 
circumstances  will  be  regarded  as  suffi- 
cient to  indicate  such  intention :  Hagerty 
V.  Albright,  52  Penn.  St.  274.  But  see  to 
the  contrary :  Paterson  v.  Ellis's  Admr., 
11  Wend.  259. 

A  bequest  of  a  life  estate  in  personal 
property,  gives  the  donee  a  right  to  con- 
sume or  wear  out  such  articles  as  cannot 
21 


otherwise  be  enjoyed  ;  and  the  donee's  lia- 
bility to  the  remainderman,  is  to  be  gov- 
erned by  the  intent  of  the  donor,  collected 
from  the  whole  will :  German  v.  German, 
27  Penn.  St.  116;  Holman's  Ap.,  24  Id. 
174;  and  if  the  bequest  is  not  specific,  the 
personalty  should  be  converted  into  money, 
of  which  the  interest  only  would  go  to  the 
tenant  for  life  :  Akerman  v.  Vreeland,  1 
McCarter's  (N.  J.)  23  ;  but  where  a  bequest 
for  life  is  made  of  personalty,  which  can 
be  enjoyed  without  being  consumed  or 
decreased,  though  waste  or  destruction  is 
practicable,  and  it  is  the  intention  of  the 
testator  that  the  legacy  should  be  in  the 
possession  of  the  first  taker,  but  also  that 
it  should  be  preserved  for  the  subsequent 
enjoyment  of  the  remainderman  ;  the  exe- 
cutor, under  the  act  of  the  legislature  of 
Pennsylvania  of  24th  of  February,  1834, 
may  require  security  from  the  first  legatee 
for  the  proper  return  of  the  gift,  before 
placing  it  in  his  possession  :  Clevenstine's 
Ap.,  15  Penn.  St.  496  ;  Rodgers  v.  Rodgers, 
7  Watts  15.  See  also,  Act  of  I7th  May, 
1871,  I  1 ;  Purd.  Dig.  Suppl.  p.  1652.  And 
see  also,  Clarke  v.  Terry,  34  Conn.  170. 


260  OF    PERSONAL   ESTATE    GENERALLY. 

executory  and  future  interest,  and  a  possibility  coupled  with  an  interest, 
in  any  tenements  or  hereditaments  of  any  tenure  may  be  disposed  of  by 
deed.  B.  may,  therefore,  during  the  life  of  A.,  assign  his  expectancy  by 
deed  ;  and  such  ^assignment  will  entitle  the  assignee  to  the  whole 
'-*'-'  term  on  A.'s  decease.  If,  however,  no  such  assignment  should 
have  been  made,B.  will  become,  on  the  decease  of  A.,  possessed  of  the  whole 
term,  which  will  then  shift  to  B.  by  virtue  of  the  executory  bequest  in 
his  favor.  The  mere  circumstance,  indeed,  of  the  term  being  bequeathed 
to  A.  for  his  life  only,  will  operate  to  shift  away  the  term  on  his  de- 
cease,(y)  independently  of  the  bequest  to  B. ;  so  that,  if  there  had  been 
no  bequest  over  to  B.,  the  interest  of  A.  would  continue  only  during  his 
life,  and  the  residue  of  the  term  would  then  remain  part  of  the  undis- 
posed of  property  of  the  testator.  It  may,  however,  be  doubted  whether 
the  doctrine  of  executory  bequests  is  applicable  in  law  to  any  other 
chattels  than  chattels  real.(^)^ 

The  strict  and  ancient  doctrine  of  the  indivisibility  of  a  chattel,  though 
still  retained  by  the  courts  of  law,  has  no  place  in  the  modern  Court  of 
Chancery,  which,  in  administering  equity,  carries  out  to  the  utmost  the 
intentions  of  the  parties.  In  equity,  therefore,  under  a  gift  of  personal 
property  of  any  kind  to  A.  for  his  life,  and  after  his  decease  to  B.,  A. 
is  merely  entitled  to  a  life  interest,  and  B.  has,  during  the  life  of  A.,  a 
vested  interest  in  the  remainder,  of  which  he  may  dispose  at  his  pleasure, 
and  the  Court  of  Chancery  will  compel  the  person  to  whom  the  courts  of 
law  may  have  awarded  the  legal  interest  to  make  good  the  disposition.^ 
Accordingly,  if  the  personal  property  so  given  should  consist  of  movable 
goods,  equity  will  compel  A.,  the  owner  for  life,  to  furnish  and  sign  an 
inventory  of  the  goods,  and  an  undertaking  to  take  proper  care  of 

(y)  Ej-res  V.  Faulkland,  1  Salk.  231  ;  Kcr  v.  Lord  Dungannon,  1  Dru.  War.  509, 
528.' 

{k)  Fcarne,  Cont.  Rem.  413.  See,  however,  1  Jarm.  Wills,  V93  ;  747,  2d  ed.  ;  Hoare 
V.  Marker,  2  Term  Rep.  376. 

1  But  see  Cooper  v.  Cooper,  2  Brevard  son  v.  Ellis's  Exr.,  11  Wend.  259;  Bell  f . 

355;  Griggs  w.  Dodge,  2  Day  28;   Taber  v.  Hogan,     1     Stew.    536;     Scott,    Exr. 

Packwood,  Id.  52;  Nevison  et  al.  t;.  Tay-  Price,   Exr.,   2   S.   &   R.   59 ;   Williams 

lor,  Admr.,  3  Halst.  43  ;   Cordle's  Admr.  v.  Graves,  Exr.,  17  Ala.  62  ;  Mifflin  v.  Neal, 

Corde's  Exr.,  6  Munf.  455;  Timberlake  v.  Admr.,  6  S.  &  R.  460;  Usilton  v.  Usilton 

Graves,  Id.  174;  Giiery  v.  Vernon,  1   Nott  et  al.,  3   Md.  Cb    Decs.    36;  Woodley  v. 

k   McC.   69;    Biscoe  v.  Biscoe,   6   Gill  &  Findley   et   al.,    9   Ala.    716;    Machen   v. 

Johns.  232;  Raborg  v.  Hammond,  2   Har.  Machen,    15   Id.  373;    Rowe  v.   White,    1 

&  G.  42  ;  Royal  v.  Eppes,  Admr.,  2  Munf.  Green  411.      And    see  also  ante,  p.  259, 

479  ;  Dashiel  v.  Dashiel,  2  Har.  &  Gill  127  ;  note. 

Powell  V.  Glenn  et  al.,  21  Ala.  458  ;  Patter-  «  See  ante,  p.  259,  note. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.  262 

*them.(Z)  This  doctrine,  ho^vever,  is  comparatively  of  modern  r*262'l 
date ;  for  formerly  the  Court  of  Chancery  followed  the  rules  of 
law  in  the  construction  of  such  gifts  ;  and  if  a  gift  of  movable  goods  had 
been  made  to  A.  for  his  life,  and  after  his  decease  to  B.,  they  would  not 
have  aflforded  to  B.  any  assistance  after  A.'s  decease.(m)  But  if  the  gift 
had  been  of  the  2ise  or  enjoyment  of  the  goods  only  to  A.  for  his  life,  and 
after  his  decease  to  B.,  the  court  would  then  have  assisted  B.  by  declar- 
ing A.'s  representatives  after  his  decease  to  be  trustees  only  for  the 
benefit  of  B.(?i)  But  this  distinction  is  now  exploded;  and  the  only 
case  in  which  the  tenant  for  life  is  now  entitled  absolutely  to  things  given 
to  him  for  life  is,  that  of  articles  quae  ipso  usu  consumuntur,  as  wines,  &c., 
a  gift  of  which  to  a  person  for  his  life  vests  in  him  the  absolute  owner- 
ship.(o)  In  all  other  cases,  as  we  have  said,  modern  equity  will  assist 
the  donee  in  remainder,  to  whom  any  gift  of  personal  estate  may  be 
made  after  the  decease  of  another  who  is  to  have  them  only  for  his 
life.(jt))  When,  therefore,  it  is  wished  to  make  a  settlement  of  any  kind 
of  personal  property,  the  doctrine  of  the  Court  of  Chancery  is  at  once 
resorted  to.  The  property  is  assigned  to  trustees,  in  trust  for  A.  for 
his  life,  and  after  his  decease  in  trust  for  B.,  &c.  This  assignment 
to  the  trustees  vests  in  them  the  whole  legal  interest  in  the  pro- 
perty ;  and  in  a  court  of  law  they  are  held  to  be  absolutely  entitled 
to  it;  for  the  Statute  of  Uses(^)  has  no  application  to  any  kind  of 
personal  estate.  But  in  equity  the  trustees  are  compellable  to  pay  the 
entire  income  to  A.  for  his  life,  and  after  his  decease  to  B.,  and  so  on 
according  to  the  *trusts  of  the  settlement ;  and  if  B.  should  alien  p2631 
his  interest  during  the  life  of  A.,  the  trustees  will  be  bound,  on 
having  notice  of  the  disposition,  to  stand  possessed  of  the  property,  after 
A.'s  decease,  in  trust  for  the  alienee.(r) 

When  shares  in  joint  stock  companies  are  settled  in  the  manner  above 
mentioned,  it  sometimes  becomes  a  question  whether  any  extraordinary 
profit  which  may  be  divided  amongst  the  shareholders  by  way  of  bonus 
should  be  considered  as  capital  or  as  interest.  The  equitable  tenant  for  life 
is  too  frequently  inclined  to  consider  himself  entitled  to  any  bonus  in  the 

(l)  Fearne,  Cont.  Rem.  407  ;  Conduitt  v.  Soane,  1  Coll.  285. 

(m)  Fearne,  Cont.  Rem.  402.  (n)  Ibid.  404. 

(o)  Randall  v.  Russell,  3  Merir.  190  ;  Andrew  v.  Andrew,  1  Coll.  690. 

(p)  Fearne,  Cont.  Rem.  406. 

(q)  21  Hen.  VIII.  c.  10  ;  Principles  of  the  Law  of  Real  Property  126,  2d  ed. ;  131, 
3d  and  4th  eds.  ;  136,  5th  ed.  ;   142,  6th  ed.  ;   146,  7th  ed.  ;   152,  8th  ed. 

(r)  A  form  of  marriage  settlement  of  stock  and  other  personal  estate  upon  the  usual 
trusts  will  be  found  in  Appendix  (B). 


263  OF    PERSONAL   ESTATE    GENERALLY. 

same  manner  as  to  ordinary  dividends.  The  Court  of  Chancery,  how- 
ever, usually  considers  every  bonus,  whether  consisting  of  additional 
joint  stock  or  shares,(s)  or  simply  of  money,(i)  as  part  of  the  capital, 
unless  it  appear  to  be  nothing  more  than  an  increased  dividend  arising 
from  the  increased  profits  of  the  year.(M)  In  the  absence,  therefore,  of 
any  special  provision  to  the  contrary,  every  bonus  ought  to  be  invested 
upon  the  trusts  of  the  settlement,  and  the  income  only  paid  to  the  tenant 
for  life.^ 

By  a  modern  act  of  parliament, (v)  on  the  decease  of  a  person  entitled 
to  a  life  interest  in  any  income,  made  payable  or  coming  due  at  fixed 
periods,  of  any  property,  whether  real  or  personal,  his  executors  or 
r*9ftn  administrators  *are  entitled  to  recover  from  the  remainderman 
'-  "^  -^  an  apportioned  part  of  the  next  payment  of  the  income,  ac- 
cording to  the  time  which  shall  have  elapsed  since  the  last  period  of 
payment,  up  to  and  including  the  day  of  the  decease  of  such  person.^ 

(s)  Brander  v.  Biander,  4  Ves.  800;  Hooper  v.  Rossiter,  13  Price  774;  s.  c.  M'Cleland 
527. 

(t)  Paris  V.  Paris,  10  Ves.  185  ;  Ward  v.  Combe,  7  Sim.  634.  See  also  Gilly  v.  Burley, 
22  Beav.  619,  624,  and  the  cases  there  collected. 

(m)  Barclay  v.  Wainewright,  14  Ves.  66;  Price  v.  Anderson,  15  Sim.  473;  Preston  v-. 
Melvill,  16  Sim.  163;  Maclaren  v.  Stanton,  3  De  G.  F.  &  J.  203. 

{v)  Stat.  4  &  5  Will.  IV.  c.  22,  s.  2;  Re  Maxwell's  Trusts,  V.-C.  W.,  9  Jur.  N.  S.  350; 
1  Hem.  &  Mill.  610. 


1  In  Earp's  Ap.,  28Penn.  St.  368,  where  a  256,   approving   Earp's  Ap.,   it  was   held 

testator  devised  and  bequeathed  the  resi-  that  the  earnings  and  profits  of  stock  of  a 

due  of  his  estate  to  his  executors,  in  trust,  decedent  made  after  his  death,  are  income, 

to  collect  the  rents,  income,  and  interest,  though    in   the  form   of   capital,    by   the 

and  to  pay  one  equal  fourth  part   to  and  issue  of  new  stock. 

for  the  use  of  each  of  his  four  children,  ^  ^^^  common  law  there  can  be  no  ap- 
respectively ;  and  among  his  residuary  portionment  of  rent:  Zule  v.  Zule,  24 
estate,  was  stock  held  by  the  testator  in  a  Wend.  76;  Stillwell  v.  Doughiy,  3  Bradf. 
manufacturing  company,  upon  which  359  ;  Marys  v.  Anderson,  24  Penn.  St.  272  ; 
large  surplus  profits,  over  and  above  the  Wegtly  v.  R.  R.,  2  Grant  Gas.  243;  Bank 
current  dividends  declared,  had  accumu-  of  Penna.  v.  AVise,  3  Watts  397,  in  which 
lated,  and  continued  to  accumulate  for  last  case  it  was  decided  that  "the  idea  of 
several  years  after  his  death  :  It  was  held  apportioning  the  rent  that  becomes  pay- 
that  the  surplus  fund  accumulated  by  the  able,  after  the  purchaser  of  a  reversionary 
company,  over  and  above  the  current  interest  in  fee,  at  a  sheriff's  sale,  has  paid 
dividends  at  the  time  of  the  death  of  the  the  purchase  money,  and  received  his  deed 
testator,  was  a  part  of  the  principal  of  the  of  conveyance  for  it,  between  him  and  the 
fund,  and  was  sv'ibject  to  the  trusts  de-  defendant  in  the  execution,  as  whose  estate 
dared  in  the  will;  and  that  the  accumula-  it  was  sold,  is  unknown  to  the  law,  and 
tions  on  the  stock  after  the  death  of  the  cannot  be  reconciled  with  any  of  its  ana- 
testator,  were  as  much  a  part  of  the  in-  logons  and  fixed  principles."  See  also, 
come  of  the  principal  as  the  current  divi-  Martin  v.  Martin,  7  Md.  368.  And  where 
dends.     And   in    Wiltbauks   Ap.,  64   Id.  a  lease  continued  beyond  the  termination 


OF    SETTLEMENTS    OF   PERSONAL    PROPERTY, 


264 


And  when  any  other  limited  interest  determines,  a  similar  right  to  an 
apportionment  is  also  given.  But  the  act  makes  no  apportionment  of 
rent  between  the  heir  or  devisee  and  the  executor  of  a  tenant  in  fee 


of  a  life  estate,  it  was  held  that  there 
could  be  no  apportionment  thereof,  and 
that  the  rent  belonged  to  whosoever  had 
the  estate  on  the  rent  day;  Marshall  v. 
Moosley,  21  N.  Y.  280.  By  a  statute  of 
Pennsylvania,  where  a  tenant  fraudulently 
removes  from  the  premises  the  goods  and 
chattels  liable  to  distress,  in  order  to  de- 
prive the  landlord  of  his  remedy,  the  rent 
may  be  apportioned  up  to  the  time  of  such 
fraudulent  removal,  and  a  distress  forth- 
with made :  Brightly's  Purd.  Dig.  611,  sect. 
6  ;  so  too  where  a  levy  under  an  execution 
is  made  on  the  tenant's  goods  in  the  de- 
mised premises  liable  to  distress,  the  rent 
for  the  current  year  or  quarter,  apportioned 
to  the  time  of  the  levy,  is  by  statute  pay- 
able out  of  the  proceeds  of  the  sale  of  the 
goods:  Wickey  v.  Eyster,  58  Penn.  St. 
501 ;  and  where  a  reversioner  disposes  of  a 
portion  of  the  reversion,  the  rent  may  be 
apportioned  between  himself  and  his  ven- 
dee :  Linton  v.  Hart,  25  Penn.  St.  193. 

It  is  in  accordance  with  the  doctrine 
that  rent  cannot  be  apportioned  as  to  time, 
that  it  has  been  decided,  that  where  a 
tenant  has  been  evicted  of  any  portion  of 
the  demised  premises  by  his  landlord,  the 
eviction  is  a  bar  to  any  claim  by  the  land- 
lord for  rent:  Shumway  v.  Collins,  6  Gray 
227;  Linton  v.  Hart,  25  Penn.  St.  193; 
Wright  V.  Lattin,  38  111.  293. 

If  one  is  entitled  for  life,  to  the  interest 
of  a  certain  sum  charged  on  real  estate, 
and  dies,  the  income  may  be  apportioned, 
so  that  the  interest  which  may  accrue, 
between  the  day  on  which  the  interest  was 
regularly  payable,  and  the  day  of  the 
death,  will  be  paid  to  the  executor  or 
administrator:  Sweigart  v.  Frey,  Adrar.,  8 
S.  &  R.  299 ;  see  also  Green,  Exr.,  v.  Osborn, 
17  Id.  171;  Cole  V.Patterson,  25  Wend. 
456. 

The  rule  of  law  which  refuses  appor- 
tionment of  rent  in  respect  of  time,  is  ap- 
plicable to  all  periodical  payments  becom- 


ing due  at  fixed  intervals ;  not  to  sums 
accruing  de  die  ad  diem.  Annuities,  there- 
fore, and  dividends  on  money  in  the  funds, 
are  not  apportionable,  as  a  general  rule. 
But  dower,  and  sums  for  the  maintenance 
of  a  wife  and  child  are  exceptions,  and  an 
annuity  in  lieu  of  dower  will  last  as  long 
as  the  dower  would  have  lasted:  Blight  v. 
Blight,  51  Penn.  St.  420.  And  interest, 
whether  the  principal  is  secured  by  mort- 
gage or  by  bond,  notwithstanding  that  it 
is  expressly  made  payable  half  yearly, 
may  be  apportioned,  for  although  reserved 
at  fixed  periods,  it  becomes  due  de  die  ad 
diem  for  forbearance  of  the  principal,  which 
the  creditor  is  entitled  to  recall  at  plea- 
sure: McKeen's  Ap.,  42  Penn.  St.  484; 
Wertz's  Ap.,  65  Id.  306. 

In  accordance  with  the  principle  that 
the  contract  is  terminated  by  the  act  of 
God,  it  has  been  held,  that  where  one 
enters  into  a  contract  of  hire  for  a  year, 
and  dies  before  the  expiration  of  the  year, 
his  wages  should  be  apportioned:  Bacoti'. 
Parnell,  2  Bail.  424;  George  v.  Elliott,  2 
Hen.  &  Munf.  5 ;  Wolf  v.  Howes,  20  N.  Y. 
197;  Babbitt  I'.  Riddell,  2  Grant  Cases  161. 

In  the  state  of  South  Carolina,  an  over- 
seer hired  for  a  year,  who  is  turned  away 
for  misconduct,  may  nevertheless  recover 
for  the  services  actually  performed  while 
he  conducted  himself  properly :  Eakin  v. 
Harrison,  4  McCord  249;  but  if  he  has 
been  negligent  in  his  duties,  or  loss  has 
occurred  by  his  leaving  the  service,  he  can 
recover  nothing:  Byrd  v.  Boyd,  Id.  246, 
and  of  these  matters  a  jury  will  judge,  as 
well  as  of  the  amount  to  which  he  may  be 
entitled:  McClure  v.  Pyatt,  Id.  26.  It 
seems,  also,  in  the  same  state,  that  "if 
one  rents  a  house  for  a  year,  and  during 
the  term  it  is  rendered  untenable  hj  a 
storm,  the  rent  ought  to  be  apportioned 
according  to  the  time  it  was  occupied  ; " 
Ripley  v.  Wightman,  4  McCord  447. 


264  OF   PERSONAL  ESTATE   GENERALLY. 

simple.(w)  And  where  the  property  ceases  with  the  interest,  and  does 
not  go  over  to  another,  as  in  the  case  of  a  life  annuity,  the  act  appears 
inapplicable;  and  the  right  to  an  apportioned  part  should  therefore,  if 
desired,  be  expressly  conferred. (2;)  The  act  extends  only  to  instruments 
executed,  and  wills  coming  into  operation  after  the  passing  of  the  act,  which 
took  place  on  the  16th  June,  1834  ;(^)  and  its  provisions  do  not  apply  to 
any  case  in  which  it  is  expressly  stipulated  that  no  apportionment  shall 
take  place,  or  to  annual  sums  made  payable  in  policies  of  assurance  of 
any  description. (2)  Previously  to  this  act  no  apportionment  was  made 
of  annuities,  or  of  the  dividends  of  stock  settled  in  trust  for  one  person 
for  life,  with  remainder  to  another ;  but  the  remainderman  was  entitled 
to  the  whole  of  the  annuity  or  dividend  which  fell  due  next  after  the 
decease  of  the  person  entitled  for  life.(a)  But  in  a  case  where  the 
tenant  for  life  of  stock  died  on  the  day  on  which  a  half-year's  dividend 
became  due,  it  was  held  that  it  belonged  to  his  personal  estate.(5)  If  an 
r^nnr-i  annuity  were  *given  for  the  maintenance  of  an  infant,(e)  or  of  a 
"-  -^  married  woman  living  separate  from  her  husband,((^)  the  neces- 
sity of  the  case  was  considered  a  ground  for  presuming  that  an  appor- 
tionment was  intended.  The  interest  of  money  lent  was  also  always 
apportioned ;  for  though  the  payment  of  such  interest  be  made  half-yearly, 
yet  it  becomes  due  de  die  in  diem,  so  long  as  the  principal  remains  un- 
paid.(e) 

An  estate  tail,  such  as  that  created  by  a  gift  of  lands  to  a  man  and 
the  heirs  of  his  body,(/)  has  nothing  analogous  to  it  in  personal  pro- 
perty. An  estate  tail  cannot  be  held  in  such  property  at  law,  neither 
does  equity  admit  of  any  similar  interest.     A  gift  of  personal  property 

(w)  Brown  v.  Amyot,  3  Hare  173,  183;  Beer  v.  Beer,  C.  P.  16  Jur.  223,  225;  12  C.  B. 
60  (E.  C.  L.  R.  vol.  74);  Re  Clulow,  3  Kay  &  J.  689. 

(z)  But  see  Carter  v.  Taggart,  16  Sim.  447;  Trimmer  v.  Danby,  V.-C.  "K.  23  L.  J., 
Chan.  979. 

(y)  Mitchell  v.  Mitchell,  4  Beav.  549;  Knight  v.  Boughton,  12  Beav.  312;  Wardroper 
V.  Cutfield,  V.-C.  K.,  10  Jur.  N.  S.  194, 

(z)  Stat.  4  &  5  Will.  IV.  c.  22,  s.  3. 

(a)  Pearly  v.  Smith,  3  Atk.  260;  Sherrard  t>.  Sherrard,  3  Atk.  502;  Warden  v.  Ash- 
burner,  2  De  G.  &  S.  366;  The  Queen  v.  The  l^ords  of  the  Treasury,  16  Q.  B.  357  (E. 
C.  L.  R.  vol.  71). 

(b)  Paton  V.  Sheppard,  10  Sim.  186. 

(c)  Hay  V.  Palmer,  2  P.  Wms.  501 ;  1  Swanst.  349  note. 
{d)  Howell  V.  Hanforth,  2  W.  Black.  1016 

(e)  Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  176;  Banner  v.  Lowe,  13  Ves.  135; 
Re  Roger's  Trusts,  1  D.  &  S.  339. 

(/)  See  Principles  of  the  Law  of  Real  Property  28,  2d  ed.  ;  30,  3d  and  4th  eds. ;  33, 
5th,  6th,  7th  and  8th  eds. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY. 


265 


of  any  kind  to  A.  and  the  heirs  of  his  body  will  simply  vest  in  him  the 
property  given.(^)  And  in  the  construction  of  wills,  where  many  infor- 
mal expressions  are  allowed  to  vest  an  estate  tail  in  lands,  the  general 
rule  is,  that  expressions,  which  if  applied  to  real  estate  would  confer  an 
estate  tail,  shall,  when  applied  to  personal  property,  simply  give  the 
absolute  interest.(7i)  The  same  eifect  will  be  produced  by  a  gift  of  such 
property  to  a  man  and  his  heirs.  The  words  "  heirs,"  and  "  heirs  of  his 
body,"  are  quite  inapplicable  to  personal  estate;  the  heir,  as  heir,  has 
nothing  to  do  with  the  personal  property  of  his  ancestor.^  Such  property 
has  nothing  hereditary  in  its  nature,  but  simply  belongs  to  its  owner  for 
the  time  being.  Hence,  a  gift  of  personal  property  to  A.  simply,  with- 
out more,  is  sufficient  to  *vest  in  him  the  absolute  interest.(^)  r*2661 
Whilst,  under  the  very  same  words,  he  would  acquire  a  life 
interest  only  in  real  estate,(y)  he  will  become  absolutely  entitled  to  per- 
sonal property.  Thus  a  gift  of  lands  to  A.  for  life,  and  after  his  decease 
to  B.,  gives  to  B.  a  mere  life  interest  in  remainder  expectant  on  the 

{g)  Fearne,  Cont.  Rem.  461,  463  ;  Doncaster  v.  Doncaster,  3  Kay  &  J.  26. 
{h)   2  Jarm.  Wills,  ch.  44,  p.  534,  3d  ed. 
(i)  Byng  V.  Lord  Stafford,  5  Beav.  558. 

(y)  Principles  of  the  Law  of  Real  Property  17,  114,  2d  ed. ;   18,  119,  3d  and  4th 
eds.;  18,  125,  5th  ed. ;  18,  131,  6th  ed.  ;  18,  134,  7th  ed, ;  19,  140,  8th  ed. 


1  Comfort  V.  Mather,  2  W.  &  S.  450,  was 
the  case  of  a  bequest  "  to  S.  E.,  wife  of  J. 
E.,"  of  the  sum  of  $1000,  "to  have  and  to 
hold  to  her  the  said  S.  E.,  her  heirs  and 
assigns,  forever  ;"  and  S.  E.  having  died 
before  the  testator,  it  was  held,  that  the 
bequest  lapsed.  Sergeant,  J.,  remarking, 
that  it  had  been  "  repeatedly  and  uniformly 
decided,  in  conformity  to  a  principle  of 
law,  which  is  said  to  have  been  borrowed 
from  the  civil  law,  that  every  legacy  im- 
plies a  condition  that  the  legatee  shall 
survive  the  testator,  and  that  where  the 
legatee  dies  in  the  lifetime  of  the  testator, 
the  legacy  lapses.  The  legislature  of  this 
State  (Pennsylvania)  has,  by  the  act  of 
8th  of  April,  1833,  corrected  the  rule, 
where  a  legacy  is  in  favor  of  a  child,  or 
other  lineal  descendant  of  the  testator, 
declaring  that  in  such  case  it  shall  survive 
to  the  issue ;  but  they  have  not  thought  fit 
to  go  further."  See  act  of  8th  of  April, 
1833,  Purd.  Dig.  (1861),  p.  1017.  See  also 
to  the  same  point.  Sword  v.  Adams,  3 
Yeates    34;    Dickinson   v.    Parvis    et   al.. 


Exrs.  8  S.  &  R.  71 ;  Bendall  v.  Bendall,  24 
Ala.  295;  Coffin  v.  Elliott,  9  Rich.  Eq. 
244 ;  Hutchinson's  Ap.,  34  Conn.  300.  By 
a  subsequent  enactment  of  the  same  State 
(Act  of  6th  May,  1844  ;  Purd.  Dig.  1017),  it 
was  provided,  that  "  no  devise  or  legacy, 
hereafter  made  in  favor  of  a  brother  or 
sister,  or  the  children  of  a  deceased  brother 
or  sister,  of  any  testator,  such  testator  not 
leaving  any  lineal  descendants,  shall  be 
deemed  or  held  to  lapse,  or  become  void 
by  reason  of  the  decease  of  such  devisee  or 
legatee,  in  the  lifetime  of  the  testator,  if 
such  devisee  or  legatee  shall  leave  issue 
surviving  the  testator;  but  such  devise  or 
legacy  shall  be  good  or  available  in  favor 
of  such  surviving  issue,  with  like  effect  as 
if  such  devisee  had  survived  the  testator, 
saving  always  to  every  testator  the  right 
to  direct  otherwise."  Under  this  last  act 
it  has  been  decided,  that  a  bequest  by  a 
testator  to  his  sister,  who  was  dead  at  the 
time  the  will  was  written,  but  who  left 
children  who  survived  the  testator,  was 
not  void:  Minter's  Ap.,  40  Penn.  St.  111. 


266  OF    PERSONAL   ESTATE   GENERALLY. 

decease  of  A.  ;(/r)  unless  indeed  tbe  gift  be  by  will  under  the  act  for  the 
amendment  of  the  laws  with  respect  to  wills.(/)  But  a  gift  of  personal 
property  to  A.  for  life,  and  after  his  decease  to  B.,  gives  to  B.  a  vested 
equitable  interest  in  the  corpus  or  body  of  the  fund,  to  which  he  becomes 
absolutely  entitled,  subject  only  to  A.'s  life  interest;  and  the  circum- 
stance of  B.'s  dying  in  the  lifetime  of  A.  would  be  immaterial. (m) 

It  is  true  that  in  deeds  and  other  legal  instruments  it  is  usual  to 
transfer  personal  estate  absolutely,  by  the  use  of  the  words  "  executors, 
administrators  and  assigns."  As  real  estate  is  conveyed  to  a  man,  his 
heirs  and  assigns,(7i)  so  personal  property  is  assigned  to  him,  his  exe- 
cutors, administrators  and  assigns.  The  executor  or  administrator  is,  as 
we  shall  see,  the  person  who  becomes  legally  entitled  to  a  man's  personal 
estate  after  his  decease ;  in  the  same  manner  that  a  man's  heir  or  assign 
becomes  entitled  to  his  real  property.  But  the  analogy  extends  no  fur- 
r*9fi71  ^^^^'  There  is  no  necessity  for  the  use  of  these  terms(o)  as 
there  is  for  the  employment  of  the  *word  "  heirs."  These  terms, 
however,  are  constantly  employed  in  conveyancing  as  words  of  limitation 
of  an  absolute  interest ;  and  a  rule  has  sprung  up  with  respect  to  their 
construction  similar  to  the  rule  in  Shelley's  Case,  by  which  the  word 
"heirs,"  when  following  a  life  estate  given  to  the  ancestor,  is  merely  a 
word  of  limitation,  giving  to  such  ancestor  an  estate  in  fee.{p)  Thus,  if 
money  or  stock  be  settled  in  trust  for  A.  for  life,  and  after  his  decease 
in  trust  for  his  executors,  administrators  and  assigns,  A.  will  be  simply 
entitled  absolutely  •,{q)  in  the  same  manner  as  a  gift  of  lands  to  A.  for 
his  life,  with  remainder  to  his  heirs  and  assigns,  gives  him  an  estate  in 
fee  simple.  But  as  the  rule,  so  far  as  it  applies  to  personal  property,  is 
not  founded  on  the  same  strict  principle  as  the  rule  in  Shelley's  Case,  a 
gift  of  such  property  to  the  executors  or  administrators  (not  adding 
assigns)  of  a  person  who  has  taken  a  previous  life  interest  is  sometimes 

(k)  Goodtitle  d.  Richards  v.  Edmonds,  7  Terra  Rep.  635. 

{1}  Stat.  1  Will.  IV.  &  1  Vict.  c.  26,  s.  28. 

(m)  Benyon  v.  Madison,  2  Bro.  C.  C.  75. 

(n)  Principles  of  the  Law  of  Real  Property  115,  2d  ed. ;  120,  3d  and  4th  eds. ;  126, 
5th  ed. ;  132,  6th  ed. ;  135,  7th  ed. ;  141,  8th  ed. 

(o)  Elliott  V.  Davenport,  1  P.  Wms.  84.  See  Earl  of  Lonsdale  v.  Conntess  of  Berch- 
toldt,  1  Kay  646. 

{p)  See  the  Principles  of  the  Law  of  Real  Property  207,  2d  ed. ;  214,  3d  ed. ;  215, 
4th  ed. ;  224,  5th  ed. ;  234,  6th  ed. ;  240,  7th  ed. ;  250,  8th  ed. 

(q)  Co.  Litt.  54  b ;  Hames  v.  Hames,  2  Keen  646 ;  Grafftey  v.  Humpage,  1  Beav.  46  ; 
Howell  V.  Gayler,  5  Beav.  157;  Meryon  i'.  CoUett,  8  Beav.  386;  Morris  t;.  Howes,  4 
Hare  599. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.  267 

construed  as  giving  him  no  further  interest  in  such  property  ;(r)  whilst, 
under  the  same  circumstances,  the  Avord  "  heirs"  in  a  gift  of  real  estate 
would  have  given  him  the  fee  simple. 

As  no  estates  can  subsist  in  personal  property,  it  follows  that  the  rules, 
on  which  contingent  remainders  in  freehold  lands  depend  for  their  exist- 
ence, have  never  had  any  application  to  contingent  dispositions  of  personal 
property.  Such  dispositions  partake  rather  of  the  indestructible  nature 
of  executory  devises  and  shifting  *uses.  Thus  a  gift  of  lands  to  r*2681 
A.  for  his  life,  and  after  his  decease  to  such  son  of  A.  as  shall 
first  attain  the  age  of  twenty-one  years,  creates  a  contingent  remainder, 
which  will  fail  in  the  event  of  no  son  of  A.  having  attained  the  pre- 
scribed age  at  the  time  of  his  decease.(s)  The  reason  of  this  failure 
depends  on  the  ancient  rule,  that  there  must  always  be  some  defined 
owner  of  the  feudal  possession ;  and.  consequently,  between  the  time  of 
the  death  of  A.  and  the  time  of  his  son's  attaining  the  age  of  twenty- 
one  years,  some  owner  of  the  freehold  ought  to  have  been  appointed,  in 
whom  the  feudal  possession  might  continue.(«)  Personal  property,  hoAV- 
ever,  has  evidently  nothing  to  do  with  these  feudal  rules  relating  to  pos- 
session. If,  therefore,  a  gift  be  made  of  personal  property  to  trustees, 
in  trust  for  A.  for  his  life,  and  after  his  decease,  in  trust  for  such  son  of 
A.  as  shall  first  attain  the  age  of  tAventy-one  years ;  or  if  a  term  of  years 
be  bequeathed  to  A.  for  his  life,  and  after  his  decease  to  such  son  of  A. 
as  shall  first  attain  the  age  of  twenty-one  years ;  it  will  be  immaterial 
whether  or  not  the  son  attain  the  age  of  tAventy-one  years  in  the  lifetime 
of  his  father.  On  his  attaining  that  age,  he  will  become  entitled  quite 
independently  of  his  father's  interest.  His  ownership  will  spring  up,  as 
it  Avere,  on  the  given  event  of  his  attaining  the  age.  But  as  the  inde- 
structible nature  of  these  future  dispositions  of  personal  estate  might  lead 
to  trusts  of  indefinite  duration,  the  rule  of  perpetuities,  which  confines 
executory  interests  within  a  live  or  lives  in  being,  and  twenty-one  years 
afterwards,  with  a  further  allowance  for  the  time  of  gestation,  should  it 
exist,(M)    applies    equally    to  personal   as   to   real    estate.      And   the 

(r)  Wallis  v.  Taylor,  8  Sim.  241 ;  see  1  Beav.  52  ;  Daniel  v.  Dudley,  1  Phi.  1 ;  Attor-' 
ney-General  v.  Malkin,  2  Phi.  64  ;  Mackenzie  v.  Makenzie,  3  Macn.  &  G.  559.  See 
also  Alger  v.  Parrott,  V.-C.  W.,  Law  Rep.  3  Eq.  328. 

(s)  resting  v.  Allen,  12  M.  &  W.  279  ;  5  Hare  573 ;  Holmes  v.  Prescott,  V.-C.  W.  10 
Jur.N.  S.  507;   12  W.  R.  636. 

{t)  Principles  of  the  Law  of  Real  Property  209,  1st  ed. ;  217,  2d  ed. ;  224,  3d  and  4th 
eds.;  233,  5th  ed. ;  246,  6th  ed.  ;  250,  7th  ed. ;  259,  8th  ed. 

(m)  Principles  of  the  Law  of  Real  Property  242,  1st  ed. ;  251,  2d  ed. ;  259,  3d  ed. ; 
262,  4th  ed. ;  272,  5th  ed. ;  286,  6th  ed. ;  294,  7th  ed.  ;  305,  8th  ed. 


269  OF    PERSONAL   ESTATE    GENERALLY. 

r*o«q-i    *further  restriction  on  the  accumulation  of  income  imposed  by 
the  Thellusson  Act,(v)  applies  to  trusts  for  the  accumulation  of 
of  the  income  of  personal  estate  as  well  as  real.^ 


Equitable  interests  in  personal  property  of  a  future  kind  may  be 
created  through  the  instrumentality  of  powers,  in  a  similar  manner,  and 
to  the  same  extent,  as  future  estates  in  land.(2;)  Thus  stock  in  the  funds 
may  be  vested  in  the  trustees  upon  such  trusts  as  B.  shall  by  any  deed 
or  by  his  will  appoint,  and  in  default  of  and  until  any  such  appointment, 
in  trust  for  C,  or  upon  any  other  trusts.  Here  C.  will  have  a  vested 
interest  in  the  stock,  subject  to  be  divested  or  destroyed  by  B.'s  exercis- 
ing his  power  of  appointment ;  and  B.,  though  not  owner  of  the  stock, 
has  power  to  dispose  of  it  by  deed  or  will,  and  may  if  he  please  appoint 
to  himself ;  in  which  case  the  trustees  will  be  found  to  transfer  it  to  him. 
If  the  power  should  not  be  exercised  by  B.,  C.  will  then  be  entitled  ab- 
solutely ;  and  will  not,  as  was  formerly  the  case  with  respect  to  landed 
property,  be  subject  to  judgment  debts  incurred  by  B.,(^)  or  to  any 
other  of  his  debts.  But  if  B.  should  exercise  his  power  by  deed  without 
valuable  consideration,  or  by  will,  in  favor  of  a  third  person,  the  stock  so 
appointed  would  be  considered  in  equity  as  part  of  the  assets  of  B.  the 
appointer,  and  would  be  subject  to  the  demands  of  his  creditors  in  pref- 
r*27m  ^'^"^^^^  ^0  *^®  claim  of  the  appointee.(2)  *In  case  of  bank- 
ruptcy, it  was  provided  by  the  former  acts(a)  that  all  powers 
vested  in  the  bankrupt,  which  he  might  legally  execute  for  his  own 
benefit  (except  the  right  of  nomination  to  any  vacant  ecclesiastical  bene- 
fice), might  be  executed  by  the  assignees  for  the  benefit  of  the  creditors 
in  the  same  manner  as  the  bankrupt  might  have  executed  the  same. 

(v)  Stat.  39  &  40  Geo.  III.  c.  98 ;  Principles  of  tlie  Law  of  Real  Property  243,  1st  ed. ; 
253,  2d  ed. ;  260,  3d  ed. ;  263,  4th  ed. ;  274,  5th  ed.  ;  288,  6th  ed. ;  295,  7th  ed. ;  307, 
8th  ed. 

(x)  See  Principles  of  the  Law  of  Real  Property  231,  etseq.  1st  ed.  ;  236,  2d  ed.  ;  243, 
3d  ed. ;  245,  4th  ed. ;  255,  5th  ed.  ;  266,  6th  ed.  ;  272,  7th  ed.  ;   283,  8th  ed. 

(y)  Ibid. 

(z)  Lassells  v.  Cornwallis,  2  Vern.  465  ;  Bainton  v.  Ward,  2  Atk.  172.  The  doctrine 
applies  also  to  appointments  of  real  estate.  See  Fleming  v.  Buchanan,  3  De  G.,  M. 
A  G.  976. 

(a)  Stat.  12  &  13  Vict.  c.  106,  s.  147,  repealing  stat.  6  Geo.  IV.  c.  16,  s.  77,  to  the 
same  effect,  and  now  repealed  by  stat.  32  &  33  Vict.  c.  83. 

^  For  American  statutes  against  accumu-  except  during  the  minority  of  one,  who,  if 

lation,  following  the  "  Thellusson  Act,"  and  then  of  full   age,  would  be  entitled  to  the 

closely  resembling  it,  see  1  Rev.  Stats.  N.  accumulated   fund:    Ilawley   v.  James,    5 

Y.  726,  sects.  37  &  38  ;  Purd.  Dig.  853,  sec.  Paige  Ch.  481 ;  Washington's  Est.,  28  Leg. 

9.     Under  these  acts  it  has  been  held,  that  Intel.  204. 
no  accumulation  of  money  will  be  valid, 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.  270 

And  by  the  Bankruptcy  Act,  1869,  such  powers  may  now  be  exercised 
by  the  trustees  for  the  creditors. (6)^ 

The  rules  respecting  the  necessity  of  a  compliance  with  the  terms  and 
formalities  of  the  power,  whenever  it  is  exercised  otherwise  than  by 
will,(<?)  and  the  relief  afforded  by  the  Court  of  Chancery  on  the  defective 
exercise  of  a  power, (cZ)  apply  as  well  to  personal  as  to  real  property. 
Powers  over  personal  estate  may  also  be  exercised  by  women,  without 
their  husband's  consent,  and  also  in  favor  of  their  husbands,  in  the  same 
manner  as  powers  over  land  ;{e)  and  the  provision  of  the  recent  Wills 
Act,  which  requires  wills  made  in  exercise  of  powers  to  be  executed  and 
attested  like  all  other  wills, (/)  applies  equally  to  powers  over  personal 
estate.  A  general  bequest  of  personal  estate  will  also  now  include  any 
personal  estate  which  the  testator  may  have  only  Sh  power  to  appoint  as 
he  may  think  fit,  in  the  same  *manner  as  a  general  devise  of  r*oYii 
real  estate  will  comprise  real  estate  subject  to  any  such  power.(,(/) 

A  frequent  instance  of  the  employment  of  a  power  over  personalty 
occurs  in  the  case  of  children's  portions,  which  are  usually  settled  on 
all  the  children  equally,  subject  to  a  power  given  to  the  parents  to 
appoint  the  shares  in  a  different  manner.^     When  such  a  power  is  exer- 

(6)   Stat.  32  &  32  Vict.  c.  71,  ss.  15,  par.  (4)  ;   25,  par.  (5), 

(c)  See  Principles  of  the  Law  of  Real  Property  238,  2d  ed.  ;  245,  3d  ed.;  247,  4th 
ed. ;  257,  5th  ed. ;  268,  6th  ed.  ;  274,  7th  ed. ;  285,  8th  ed.  See  now  as  to  deeds,  stat. 
22  &  23  Vict.  c.  35,  s.  12. 

(d)  Ibid.  239,  2d  ed.  ;  246,  3d  ed.;  248,  4th  ed. ;  258,  5th  ed.  ;  269,  6th  ed.  ;  276,  7th 
ed. ;  287,  8th  ed. 

(e)  Ibid.  241,  2d  ed. ;  248,  3d  ed.;  250,  4th  ed.  ;  260,  5th  ed.  ;  271,6th  ed.  ;  278,  7th 
ed. ;  289,  8th  ed. 

(/)  Ibid.  240,  2d  ed.  ;  247,  3d  ed.  ;  249,  4th  ed.  ;  259,  5th  ed. ;  271,  6th  ed.  ;  277, 
7th  ed. ;  288,  8th  ed. 

(ff)  Ibid.  242,  2d  ed. ;  249,  3d  ed.  ;  251,  4th  ed.  ;  261,  5th  ed.  ;  273,  6th  ed.  ;  279, 
7th  ed.  ;   291,  8th  ed. 

1  By  the  fourteenth  section  of  the  Bank-  ^  Whenever  a  person  gives  property,  and 

rupt  Law  of  the  United  States,  it  is  pro-  points  out  with  certainty  the  objects  who 

Tided  that  all  the  right,  title,  power  and  are  to    take,  the  property  itself,  and  the 

authority  to  sell,  manage,  dispose  of,  sue  way  in  which  it  shall  go,  that  creates  a 

for,    recover   or    defend    the    property    or  trust,   unless  he    shows    clearly,   that   his 

estate    of   the    bankrupt,   as   he    himself  desire  expressed,   may  be   controlled    by 

might  or  could  have  had  if  no  assignment  some  person  to  whom  he  has  given  a  dis- 

bad  been  made,  shall,  in  virtue  of  the  ad-  cretion  to  defeat  it:  Gilbert  v.  Chapin,  19 

judication  of  bankruptcy  and  the  appoint-  Conn.  342  ;  Hunter  w.  Stembredge,  12  Geo. 

ment  of  his  assignee,  be  at  once  vested  in  194  ;  Gibbs  v.  Marsh,  3  Mete.  243  ;  Lucas 

such  assignee  :  2  Brightly's  U.  S.  Dig.,  p.  v.   Lockhart,   10  Sm.  &  Mar.  470 ;   Erick- 

81,  sec.  26.  son  v.  Willard,   1  N.  H.  232;  Jackson  v. 


271 


OF  PERSONAL  ESTATE  GENERALLY. 


cised,  the  shares  previously  vested  in  the  children  are  divested  from 
them,  and  new  shares  are  veste'd  in  them  by  the  operation  of  the  power. 


Jackson,  2  Penn.  St.  212  ;  Mitchells  v. 
Johnsons,  &c.,  6  Leigh  4G1  ;  Still  v.  Spear, 
45  Tcnn.St.  171. 

This  doctrine  is  particularly  applicable 
to  those  cases  where,  a  testator  has  be- 
queathed, or  devised  property  to  one,  with 
a  '-desire,"  "hope,"  or  "recommenda- 
tion," that  he  will  appoint  it  among  a  cer- 
tain class,  or  to  such  of  a  designated  class, 
as  he  shall  choose  ;  the  words  "  desirej" 
"hope,"  "recommend,"  &c.,  being  consi- 
dered sufficiently  certain,  if  the  objects, 
and  the  subject-matter  of  the  trust,  are 
clearly  indicated ;  and  the  discretion  re- 
posed b}'  the  testator  in  the  donee  of  the 
power,  being  limited  to  certain  individu- 
als of  a  class,  and  on  no  account  to  be  ex- 
ercised without  that  limit,  is  regarded  as 
sufficiently  clear  to  raise  a  trust :  Gibbs  v. 
Marsh,  2  Mete.  243  ;  Lucas  v.  Lockhart,  10 
Sm.  &  Mar.  4T0  ;  Erickson  v.  Willard,  1 
N.  H.  232  ;  Bull  v.  Bull,  8  Conn.  47  ;  The 
New  Parish  in  Exeter  v.  Odwine  et  al.,  7 
N.  H.  142  ;  Dominick  v.  Sayre,  3  Sandf.  S. 
C.  555;  Green  v.  Collins,  6  Ired.  139; 
Withers  et  al.  v.  Yeadon,  Admr.,  1  Rich. 
Eq.  324 ;  Jarnagin  v.  Conway  et  al.,  2 
Humph.  50  ;  Mitchells  v.  Johnsons,  &c.,  6 
Leigh  461;  Negroes  v.  Plummer,  17  Md. 
165  ;  Freeland  v.  Pearson,  Law  Rep.  3  Eq. 
658  ;  Wickersham  v.  Savage,  58  Penn  St. 
365.  But  if  the  discretion  or  confidence 
reposed  in  the  appointor,  is  such  as  to 
allow  him  to  defeat  the  ultimate  desire  of 
the  testator,  there  can  be  no  trust,  for  one 
of  the  certainties  incident  to  every  trust  is 
then  deficient,  by  reason  of  the  extreme  li- 
cense vested  in  the  donee  of  the  power : 
Harper  v.  Phelps,  21  Conn.  270  ;  Lillard «;. 
Robinson,  3  Litt.  415  ;  Burbank  v.  Whit- 
ney, 24  Pick.  146;  Ellis  et  al.  v.  Ellis's 
Admr.,  15  Ala.  296  ;  Eaton  v.  Watts,  Law 
Rep.  4  Eq.  151.  In  the  language  of  the 
English  cases,  the  power  of  appointment 
must  be  one,  "which  it  is  the  duty  of  the 
party  to  execute,  made  his  duty  by  the 
requisition  of  the  will,  put  upon  him  as 
such  by  the  testator,  who  has  given  him 


an  interest  extensive  enough  to  enable 
him  to  discharge  it,  he  is  a  trustee  for  the 
exercise  of  the  power,  and  not  as  having  a 
discretion,  whether  he  will  exercise  it,  or 
not;  and  the  court  adopts  the  principle  as 
to  trusts  :  and  will  not  permit  hi.s  negli- 
gence, accident,  or  other  circumstances,  to 
disappoint  the  interest  of  those,  for  whose 
benefit  he  is  called  upon  to  execute  it:" 
Brown  v.  Higgs,  8  Ves.  574;  Pierson  v. 
Garnet,  2  Brown  Ch.  38  ;  Prevost  v.  Clarke, 
2  Madd.  Ch.  458.  It  is  often  a  matter  of  con- 
siderable difficulty,  to  determine  whether 
a  discretion  thus  granted,  is  sufficient  to 
defeat  a  trust  or  not,  as  will  be  seen  by  a 
comparison  of  the  cases  of  Coates's  Ap- 
peal, 2  Penn.  St.  129  ;  McKonkey's  Appeal, 
13  Id.  253;  and  Pennock's  Estate,  20  Id. 
268,  which,  although  under  different  names, 
are  the  same  case,  decided  differently 
three  several  times  ;  the  facts  as  reported 
disclose,  that  a  testator  bequeathed  to  his 
wife  the  use  of  his  real  estate  during  her 
life,  and  his  personal  property  absolutely, 
"  having  full  confidence,  that  she  would 
leave  the  surplus,  to  be  divided  at  her 
decease,  justly  among  my  children."  By 
the  first  of  the  three  cases  last  cited,  it 
was  decided,  that  this  bequest  was  a  trust 
for  the  children ;  by  the  second,  that  it 
was  a  trust  as  to  the  surplus,  after  the 
death  of  the  wife  ;  and  by  the  third,  that 
it  was  no  trust  at  all.  This  last  is,  with- 
out doubt,  the  correct  decision,  being  in 
accordance  with  the  principles  above  al- 
luded to ;  for,  to  quote  from  the  opinion 
of  Chief  Justice  Gibson,  in  McKonkey's 
Appeal,  13  Penn.  St.  258:  "It  is  plain, 
that  she  "  (the  wife  of  the  testator)  "  was 
to  use  not  only  the  income  of  the  per- 
sonal estate,  but  the  estate  itself,  as  if  she 
were  the  untrammelled  owner  of  it ;  that 
is,  the  discretion  reposed  by  the  testator 
in  his  wife,  was  so  great,  as  to  give  her 
an  option  to  defeat  his  desire,  if  she  saw 
fit,  and  consequently  there  could  be  no 
trust,  as  was  very  properly  concluded  on 
a   third   hearing   of  the   case.      And"  see 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY. 


271 


Formerly,  if  such  a  power  were  so  worded  as  not  to  authorize  an  exclu- 
sive appointment  to  some  or  one  of  the  children,  it  was  held  by  the  Court 


Beck's  Appeal,  46  Id.  527  ;  Church  v.  Dis- 
brow,  52  Id.   219;  Burt  v.  Herron,  66  Id. 
400.     In  the  case  of  Harrisous  v.  Harri- 
son's Admrx.,  2  Gratt.  1,  however,  upon 
construction  of  the  following  words  of  a 
will,  it  was  held,  that  there  was  an  abso- 
lute trust  for  the  children,  subject  to  the 
wife's  use  :    "  In  the  utmost  confidence  in 
my  wife,  I    leave    to   her   all    my  wordly 
goods,  to    sell,    or    keep    for    distribution 
among    our    dear    children,    as    she     may 
think  proper.     My  whole  estate,  real  and 
personal,   are  left  in  fee  simple   to   her  ; 
only  requesting  her  to  make  an  equal  dis- 
tribution among  our  heirs  ;  and  desiring 
her  to  do  for  some  of  our  faithful  servants, 
whatever   she  may  think    will  most  con- 
duce to  their  welfare,  without  regard  to 
the    interest   of  my    heirs."      Again,    the 
term  used  by  the  testator  to  designate  the 
class  intended  to  take — among  whom  the 
appointor    may    exercise  his    discretion — 
must  not  be  too  general  ;  that  is,  so  gen- 
eral as    to    give    rise    to    an    uncertainty, 
otherwise  there  will  be  no  trust,  and  in 
default  of  appointment,  the  property  will 
go   to  the  heir  at  law,  if  real   estate,  or  if 
personal  property,  to  the  next  of  kin,  ac- 
cording  to  the    statute    of  distributions : 
Hill's    Exrs.   v.  Bowman    et   al.,    1  Leigh 
650  ;  Shermer  v.  Shermer's  Exrs.,  1  Wash. 
(Va.)  266  ;  Ralston  v.  Waler,  44  Penn.  St. 
219  ;  in  other  words,  the  persons  who  are 
to  take,  must  be  a  restricted  and  clearly 
ascertainable  class,  and  can  never  be  be- 
yond those  of  children  or  relations,  of  the 
donor  or  donee  of  the  power :    Mahon  v. 
Savage,  1    Sch.    &   Lef.    Ill  ;  Harding  v. 
Glyn,  1  Atk.  469 ;  Morris  v.  Owen  et   al., 
2  Call   520;    Cole  v.  Wade,   16    Ves.    27; 
Ray  V.  Adams,  3  Myl.  &  K.  237  ;  Doyley  v. 
Attorney-General,  4  Vin.  Ab.  485  ;  Witts 
V.  Boddington,  3    Bro.  C.    95  ;    Cathey    v. 
Cathey,  9  Humph.  470;  Hudson  v.  Hud- 
son's Admr.,    6   Munf.  352 ;    Dominick   v. 
Sayre,  3  Sandf.  S.  C.  555  ;  Frazier  v.  Fra- 
zier's  Exrs.  et  al.,  2  Leigh  642  ;  Grant  v. 
Lyman,  4  Russ.  292  ;  thus,  the  word  "fam- 


ily," has  been  held  too  general :  Tolson  v. 
Tolson,  10  Gill  &  Johns.  159;  Cruwys  v. 
Coleman,  9  Ves.  319  ;  Wright  v.  Atkins,  1 
Turn.  &  Russ.  157  ;  Stubbs  v.  Sargon,  2 
Keen  255  ;  and  so  of  the  word  "  rela- 
tives:  "  Gilbert  v.  Chapin,  19  Conn.  342  ; 
Dominick  v.  Sayre,  3  Sandf.  S.  C.  555  ;  or 
"  relations  :  "  Varrel  v.  Wendell,  20  N.  H. 
431  ;  but,  on  the  other  hand,  "  male  de- 
scendants of  the  name  of  Dominick,"  have 
been  held  to  designate  a  class,  who  would 
all  take  equally  in  default  of  appoint- 
ment :  Dominick  v.  Sayre,  3  Sandf.  S.  C. 
555 ;  and  the  words  "  members  of  my 
family,"  have  been  regarded  as  sufficiently 
certain  to  create  a  trust:  Frazier,  &c.,  v. 
Frazier's  Exrs.,  &c.,  2  Leigh  642. 

Where  the  power  is  to  appoint  among  a 
certain  class,  all    must   have    something: 
McKonkey's    Appeal,    13    Penn.    St.    253; 
Grimke   v.   Exrs.  of  Grimke,    1   Dessauss. 
377  ;  Haynesworth   v.  Cox,  Harp.  Eq.  119, 
n.;  Fronty  v.  Fronty,  Bail.  Eq.,  Ap.  517: 
Withers  et  al.  v.  Yeadon,  Admr.,  1   Rich. 
Eq.  324  ;  Cathey  v.  Cathey  et  al.,  9  Humph. 
470;    Knight   v.    Yarborough,    Gilm.    27; 
Hudsons  V.  Hudsons'  Admr.,  6  Munf.  352 ; 
Mitchells  v.   Johnsons,  &c.,  6   Leigh  461  ; 
the  word  among,  indicates  that  the  discre- 
tion is  limited  to  all,  and  to  be  exercised 
only  as  regards  the  proportion  in  which 
each  is  to  take,  which,  of  course,  need  not 
be    equally:    Withers   et  al.    v.    Yeadon, 
Admr.,  1  Rich.   Eq.   324  ;  Knight  v.  Y'ar- 
borough,  Gilm.  27  ;  Mitchells  v.  Johnsons, 
&c.,  6  Leigh  461 ;  Lippincott  v.  Ridgway,  3 
Stockt.  526  ;  though  see  to  the  contrary  : 
Bolton  V.  De   Peyster,  25   Barb.   539 ;  In- 
graham  I'. Meade,  3  Wall.  Jr.  32  ;  Budington 
V.  Munson,  33  Conn.  481  ;  but  no  illusory 
appointment    will   be    valid :    Grimke    v, 
Exrs.  of  Grimke,  1  Dessauss.  377  ;  for  that 
would  not  be   fulfilling   the    intention   of 
the  testator,   though  the  English  practice 
of  setting  aside  certain   appointments  as 
illusory,  it  seems,  is  not  known  as  part  of 
the   Pennsylvania   jurisprudence  :    Ingra- 
ham  V.  Meade,  ante;  Graeff  v.  De  Turk,  44 


271 


OF   PEtlSONAL   ESTATE   GENERALLY. 


of  Chancery,  as  a  rule  of  equity,  that  each  child  ought  to  have  a  sub- 
stantial share ;  and  an  appointment  to  any  child  of  a  very  small  share 
was  called  an  iUusori/  appointvient,  and  was  held  void.(^)  But  this 
doctrine  having  given  rise  to  difficulties  and  family  disputes,  from  the 
uncertainty  of  the  question  what  was  too  small  or  what  was  a  sufficient 
share,  the  meddlesome  doctrine  of  equity  on  this  point  was  a  few  years 


{h)   1  Sugd.  Pow.  5G8  et  seq. ;  440,  8th  ed. ;  Chance  on  Powers,  396  et  seq. 


Penn.  St.  532.  If,  however,  the  donee  of 
the  power  has  the  power  of  appointing 
to  such  of  the  class  as  he  may  see  fit,  he 
may  appoint  to  one  only,  for  that  is  in  ac- 
cordance with  the  discretion  reposed  in 
him  :  Curr  v.  Grain  et  al.,  2  Eng.  241  ;  Ball 
V.  Ball,  8  Conn.  47  ;  Lasley  v.  Blakeman, 
4  B.  Mon.  640  ;  Rhett  v.  Mason,  18  Gratt. 
491  ;  where,  however,  one  left  an  estate  to 
trustees,  to  pay  to  such  brothers  and 
sisters  of  ray  daughter  and  their  children, 
and  in  such  proportions,  as  she  shall,  &c., 
direct  and  appoint,  my  will  being,  that  she 
shall  have  power  to  dispose  of  the  same 
amonff  her  said  brothers  and  sisters  and 
their  children,  as  she  may  think  fit,  it  was 
held,  that  each  brother  and  sister  was  en- 
titled to  some  portion  of  the  fund  :  Lip- 
pincott  V.  Ridgway,  2  Stockt.  164.  But  in 
either  case,  if  the  appointor  does  not  ex- 
ercise the  power,  all  of  the  class  will  take, 
for  in  both  instances  the  testator  has  in- 
dicated the  class,  as  the  recipients  of  his 
bounty ;  in  the  one  case,  granting  to  a 
third  person  the  power  to  divide  it  among 
them  as  he  will,  in  the  other,  allowing 
him  to  give  it  to  one  of  the  class  men- 
tioned, if  he  chooses :  Carr  v.  Grain  et  al., 
2  Eng.  241  ;  Bull  v.  Bull,  8  Conn.  47  ; 
Collins  V.  Carlisle,  7  B.  Mon.  14  ;  Emory 
et  al.  V.  The  Judge  of  Probate,  7  N.  H. 
142 ;  Dominick  v.  Sayre,  3  Sandf.  S.  C. 
555  ;  Green  v.  Collins,  6  Ired.  139  ;  Mc- 
Konkey's  Appeal,  13  Penn.  St.  253  ;  Thomas 
V.  Thomas,  1  Rawle  118  ;  Withers  et  al.  v. 
Yeadon,  Admr.,  1  Rich.  Eq.  324  ;  Gathey 
V.  Cathey  et  al.,  9  Humph.  470  ;  Morris  v. 
Owen  et  al.,  2  Call.  520  ;  McGaughey's 
Admr.  v.  Henry,  15  B.  Mon.  383  ;  Cruse  v. 
McKee,  2  Head  1 ;  Rogers  v.  Rogers,  2  Id. 


660 ;  and  this  is  in  accordance  with  that 
principle  of  law  which  prescribes,  that 
where  there  is  a  general  and  a  particular 
intention  manifested  by  the  testator,  the 
general  intention  shall  prevail,  though  the 
particular  intention  be  defeated  :  Heirs  of 
Capel  V.  McMillan,  Admr.,  8  Port.  (Ala.) 
205;  Statesworth  v.  Statesworth,  5  Ala. 
145. 

It  has  been  held,  however,  in  the  case  of 
Baker  et  al.  v.  Lorillard,  4  Gomst.  257,  that 
where  there  was  a  devise  to  one  of  pro- 
perty, to  dispose  of  the  same  among  chil- 
dren and  grandchildren,  it  might  have  been 
appointed  to  some  in  exclusion  of  the 
others. 

So  restricted  is  this  power  of  appoint- 
ment to  the  class  specified,  that  it  has 
been  held,  that  a  power  to  appoint  to 
children,  will  not  authorize  an  appoint- 
ment to  grandchildren  :  Rankin  et  al.  v. 
Hoyle  et  al.,  6  Ired.  Eq.  161 ;  Jarnagin  v. 
Conway  et  al.,  2  Humph.  50  ;  Morris  v. 
Owen  et  al.,  2  Gall.  520  ;  Hudsons  v.  Hud- 
sons'  Admr.,  6  Munf.  352  ;  Lasley  v.  Blake- 
man, 4  B.  Mon.  540;  Little  «.  Bennett,  5 
Jones  Eq.  156  ;  Horwitz  v.  Norris,  49  Penn. 
St.  213  ;  Carson  v.  Carson,  Phill.  (N.  C.) 
Eq.  57. 

But  where  there  are  no  children,  or 
there  are  strong  and  conclusive  circum- 
stances, to  show  that  such  was  the  inten- 
tion of  the  testator,  grandchildren  will  take 
under  such  a  bequest  to  children:  Cutter 
V.  Doughty,  23  Wend.  522  ;  Ruflf  v.  Ruther- 
ford et  al.,  1  Bail.Eq.  7  ;  Hallowell  et  al.  r. 
Phipps  et  al.,  2  Whart.  376;  Dickinson  v. 
Lee,  4  Watts  82  ;  Mowatt  v.  Carson  et  al., 
7  Paige  328;  Phillip's  Devisees  v.  Beale,  9 
Dana  1  ;  Ingraham  v.  Meade,  3  Wall.  Jr.  32. 


OF   SETTLEMENTS    OF    PERSONAL    PROPERTY.  271 

ago  abolished  by  act  of  parliament  ',{i)  and  now  the  appointment  of  any 
share,  however  small,  cannot  be  set  aside  on  the  ground  of  its  being  illu- 
sory. The  act  extends,  as  did  the  doctrine,  to  real  estate  as  well  as  per- 
sonal ;  but  landed  property  is,  from  its  nature,  seldom  cut  up  into  httle 
portions. 

Although  no  appointment  is  now  void  for  being  illusory,  yet  where  an 
exclusive  appointment  is  not  authorized,  any  appointment,  by  which  any 
object  of  the  power  would  be  entirely  excluded,  is  still  void.  Thus,  if 
*1,000Z.  be  given  to  A.,  B.  and  C.  in  such  shares  as  their  father  r*070-| 
shall  appoint,  and  in  default  of  appointment  to  them*  equally,  an 
appointment  of  900^.  to  A.,  would  now  be  good,  as  100^.  would  remain  to 
be  equally  divided  between  the  three,(A;)  of  which  B.  and  C.  would  get 
each  one-third.(Z)  But  a  subsequent  appointment  of  the  remaining  1001. 
to  B.  would  be  void,  as  altogether  excluding  C,  who  is  equally  an  ob- 
ject of  the  power.(w)  It  is  customary,  however,  in  modern  settlements 
to  give  to  parents  a  power  of  appointment  in  favor  of  any  one  or  more  of 
the  children  exclusively  of  the  others.  And  in  order  that  those  to  whom 
appointments  have  been  made  should  not  obtain  more  than  may  have 
been  intended  for  them,  it  is  generally  provided  that  no  child  taking  any 
share  of  the  fund  under  any  appointment  shall  be  entitled  to  any  share 
in  the  part  unappointed  without  bringing  his  or  her  share  into  hotchpot,^ 
and  accounting  for  the  same  accordingly.  Under  such  a  provision,  A., 
in  the  instance  above  given,  would  not  be  entitled  to  any  share  in  the 
100?.  unappointed,  without  also  agreeing  to  a  like  division  of  his  900?. 
amongst  himself  and  the  others.  The  clause  of  hotchpot  operates  favor- 
ably to  the  representatives  of  those  children  who  may  happen  to  die  be- 
fore any  appointment  shall  have  been  made  to  them.  For  when  a  power 
is  given  to  appoint  amongst  children,  no  appointment  can  be  made  to  the 
executors  or  administrators  of  those  who  may  have  died  ;(7i)  so  that  such 
executors  or  administrators  cannot  possibly  take  more  than  the  aliquot 
part  given  to  the  deceased  child  in  default  of  any  appointment ;  whilst 
they  may  be  partially  or  totally  excluded  even  *from  that  by  a  r^n-ro-i 
partial  or  complete  exercise  of  the  power  of  appointment    in 

(i)  Stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  46,  16th  July,  1830. 

{k)   Young  V.  Waterpark,  13  Sim.  202. 

(Z)  Wilson  V.  Piggott,  2  Ves.  jun.  351  ;  Wombwell  v.  Hanrott,  14  Beav.  143.  See 
Foster  v.  Cautley,  6  De  G.  M.  &  G.  55. 

(m)  2  Ves.  jun.  355. 

(n)  Boyle  v.  The  Bishop  of  Peterborough,  1  Ves.  jun.  299  ;  Ricketts  v.  Loftus,  4  You. 
&  Col.  519. 

1  Termed  in  the  civil  law,  ^^  collation :"  Reed  v.  Crocker,  12  La.  Ann.  436. 


273  OF  PERSONAL  ESTATE  GENERALLY. 

favor  of  the  surviving  cliililren,  or  even  of  a  single  survivor.  When  the 
appointment  is  partial  only,  the  executors  or  administrators  of  a  deceased 
child  will,  under  the  hotchpot  clause,  divide  the  fund  unappointed  with 
the  other  children  to  whom  no  appointment  may  have  been  made; 
whereas,  without  such  a  clause,  the  children  to  whom  appointments  may 
have  been  made  would  be  equally  entitled  to  participate  in  the  part 
unappointed.(o) 

When  a  power  is  given  to  appoint  property  amongst  a  particular 
class,  no  portion  of  the  fund  can  be  appointed  in  favor  of  any  person 
who  is  not  a  member  of  that  class  ;  and  any  appointment  to  such  person 
will  accordingly  be  void.'  Thus,  if  the  power  be  to  appoint  the  pro- 
perty to  all  or  any  of  the  children  of  the  appointor  in  such  manner  as 
he  may  think  fit,  no  interest  in  the  property  can  be  appointed  to  any 
grandchild  of  the  appointor;  for  a  grandchild  is  not  an  object  of  the 
■power. (^^)  So  if  the  power  be  to  appoint  amongst  nephews  or  grand- 
nephews,  those  only  can  take  any  shares  who  answer  that  description. (^) 
Again,  if  the  power  be  to  appoint  portions  amongst  younger  children, 
nothing  can  be  taken  by  a  younger  son  Avho  afterwards  becomes  the 
eldest  by  the  decease  of  his  elder  brother  ;(r)  although  if  he  should  have 
actually  received  any  share  in  the  money  whilst  a  younger  son.  he  will 
r*-'>741  ^^^  ^®  obliged  to  refund  it  on  becoming  the  eldest.(«)  The 
word  *"  younger,"  however,  is  not,  in  parental  provisions,(i) 
taken  literally,  but  as  meaning  any  child  who  may  not  be  entitled  to  the 
family  estate.  Therefore  a  danghter,  who  may  be  the  eldest  child, 
would  be  considered  as  a  proper  object  of  a  power  to  appoint  amongst 
the  younger  children,  Avhilst  her  younger  brother,  being  the  eldest  son 
entitled  to  the  family  estate,  would  not  be  allowed  to  participate. (w) 
And  in  the  same  manner  a  second  son  becoming  the  eldest,  but  not  ob- 

(o)  Wilson  V.  Piggott,  2  Ves.  jun.  351  ;  Wombwell  v.  Hanrott,  14  Beav.  143;  Walms- 
ley  V.  Vanghan,  1  De  G.  &  J.  114. 

{p)  Alexander  v.  Alexander,  2  Ves.  sen.  640  ;  Bristow  v.  Warde,  2  Ves.  jun.  336. 

{qj  Falkner  v.  Butler,  Amb.  514  ;  Waring  v.  Lee,  8  Beav.  247. 

(r)  Chadwick  v.  Doleman,  Vern.  528  ;  Lord  Teynham  v.  Webb,  2  Ves.  sen.  198  ;  Gray 
V.  Earl  of  Limerick,  2  De  G.  &  Sm.  370.  See  Sandeman  v.  Mackenzie,  1  John.  &  H. 
613. 

(s)  2  Sugd.  Pow.  293  ;  680,  8th  ed. 

(/)  Hall  V.  Hewer,  Amb.  203  ;  Lyddon  v.  Ellison,  19  Bear.  505. 

(u)  Pierson  v.  Garnet,  2  Bro.  C.  C.  38  ;  Heneage  v.  Hunloke,  2  Atk.  456  ;  Beale  v. 
Beale,  1  P.  Wms.  244. 

'  See  ante,  p.  271,  note. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.  274 

taining  the  family  estate,  would  be  allowed  a  share.(?')  A  power  to  ap- 
point amongst  children  living  at  their  father's  decease  includes  a  child 
en  ventre  sa  mere.{tv) 

In  some  cases  where  the  power  only  authorizes  an  appointment 
amongst  children,  an  appointment  in  favor  of  the  issue  of  a  child  may  be 
sustained  as  being,  in  eftect,  first  an  appointment  to  the  child,  and  then 
an  assignment  by  such  child  in  favor  of  his  issue.(.'r)  But  this  of  course 
can  only  be  done  when  the  child  is  of  age,  and  is  a  party  to  and  executes 
the  deed  by  which  the  appointment  is  made.  And  the  more  regular  plan 
in  such  cases  is,  for  the  father  first  to  make  the  appointment  in  favor  of 
the  child,  and  then  for  the  child  to  make  an  assignment  of  the  fund  ap- 
pointed to  trustees  in  trust  for  his  children  in  the  manner  intended. 

An  appointment  by  a  father  in  fiivor  of  his  child,  in  exercise  of  a 
power  for  that  purpose,  ought  to  be  made  for  the  benefit  of  the  child 
who  is  the  object  of  the  *provision,  and  not  indirectly  for  the  r*97r.-| 
benefit  of  the  father  who  makes  the  appointment  or  of  any  other 
person.^  Accordingly,  any  exercise  of  the  power  under  a  bargain  for, 
or  even  with  a  view  to  the  benefit  of  the  appointor,  or  of  any  other  per- 
son than  one  of  the  objects  of  the  power,  will  be  considered  as,  in  tech- 
nical phrase,  a  fraud  on  the  power  and  will  be  void.(?/)  But  when  there 
is  no  evidence  that  the  appointment  is  made  under  a  bargain  for  the 
benefit  of  the  father,  although  there  may  be  strong  suspicion  that  such 
is  the  case,  the  appointment  cannot  be  set  aside.(3)  Powers  of  appoint- 
ment amongst  children  usually  enable  the  parent  to  fix  the  age  or  time 
at  which  the  fund  appointed  shall  vest  in  any  child.     But,  on  the  prin- 

(d)  Spencer  v.  Spencer,  8  Sim.  87 ;  Macoubrey  v.  Jones,  2  Kay  &  J.  684  ;  Sing  v. 
Leslie,  2  Hem.  &  Mil.  68. 

(w)  Beale  v.  Beale,  1  P.  Wms.  244. 

{x)  Routledge  v.  Dorril,  2  Ves.  jun.  357;  West  v.  Berney,  1  Russ.  &  My.  431,  439; 
Goldsmid  v.  Goldsmid,  2  Hare  187  ;  Limbard  v.  Grote,  1  Myl.  &  K.  1, 

(y)  Daubeney  v.  Cockburn,  1  Meriv.  626;  Palmer  i'.  Wheeler,  2  Ball  &  B.  18  ;  Jack- 
son V.  Jackson,  1  Dru.  91  ;  Thompson  v.  Simpson,  2  Jones  &  Lat.  110  ;  Topham  v.  Duke 
of  Portland,  1  De  G.,  J.  &  S.  517  ;  Pryor  v.  Pryor,  2  De  G.,  J.  &  S.  205. 

(z)  M'Queen  v.  Farquhar,  11  Ves.  467  ;  Hamilton  v.  Kirwan,  2  Jones  &  Lat.  393  ; 
Campbell  v.  Home,  1  You.  &  Col.  N.  C.  664. 

1  Bostick  V.  Winton,  1  S.need  524,  may  father,  the  appointor,  and  to  become  secu- 
be  referred  to  in  illustration  of  the  doc-  rity  for  the  father's  debts,  with  the  un- 
trine  stated  in  the  text ;  in  which  case  it  derstanding  that  the  land  was  to  be  re- 
was  decided,  that  a  conveyance  made  to  a  conveyed,  was  not  such  an  appointment 
child,  in  order  that  he  might  have  suffi-  in  good  faith,  as  would  defeat  the  re- 
cient  property  to  become  bail  for  the  mainders. 
22 


275  OP  PERSONAL  ESTATE  GENERALLY. 

ciple  just  stated,  a  father  ^vill  not  be  allowed  to  make  an  immediate 
appointment  to  an  infant  child,  for  the  sake  of  becoming  himself  entitled 
to  the  fund  appointed,  as  the  child's  personal  representative  in  the  event 
of  its  decease. (a)  An  appointment  to  an  infant  is  not,  however,  neces- 
sarily void  on  account  of  the  circumstance  that  the  father,  who  has  made 
the  appointment,  Avill  become  entitled  to  the  property  appointed  in  the 
event  of  the  child's  decease. (6) 

In  the  exercise  of  powers  of  appointment  amongst  children,  care 
should  be  taken  not  to  postpone  the  vesting  of  their  shares  to  a 
L  "  -J  period  which  may  exceed  the  *limits  allowed  by  the  law  of  per- 
petuity.(e)  When  the  powers  of  appointment  is  a  general  power,  ena- 
blinrr  the  appointor  to  make  a  disposition  in  favor  of  any  object  he  may 
please,  the  property  is  evidently  not  tied  up  so  long  as  such  a  power 
exists  over  it;  and  neither  the  reason  nor  the  rule  which  forbids  a  per- 
petuity has  any  application  till  some  settlement  is  made  in  exercise  of 
such  a  power.  In  such  a  case,  therefore,  the  limits  of  perpetuity  com- 
mence from  the  time  of  the  appointment, (c?)  But  where  the  power  of 
appointment  is  to  be  exercised  only  in  favor  of  a  particular  class  of  ob- 
jects, the  property  subject  to  the  power  is  evidently  already  tied  up  in 
favor  of  that  class.  The  limits  of  perpetuity  are  therefore  in  this  case 
to  be  reckoned,  not  from  the  time  of  the  exercise  of  the  power,  but  from 
the  date  of  its  creation.  The  interest  given  by  the  power  must,  for  this 
purpose,  be  regarded  as  if  they  had  been  inserted  in  the  settlement  by 
which  the  power  was  created  ;  and  if  such  interests  would  have  been  too 
remote,  if  inserted  in  the  original  settlement,  they  will  be  too  remote 
when  given  in  exercise  of  thfe  power.(e)  Thus  a  person  having  a  general 
power  of  appointment  by  will  over  a  fund,  may  by  his  will  appoint  a 
share  of  it  in  favor  of  any  unborn  child  of  his  own,  to  be  vested  in  such 
child  on  his  attaining  the  age  of  twenty-three  years.  The  limit  of  per- 
petuities is  reckoned  from  the  time  of  the  appointment,  which  in  this 
case  is  the  death  of  the  appointor,  when  his  will  begins  to  take  effect. 
The  child  must  necessarily  then  be  born,  or  in  ventre  sa  mere,  and  the 
child's  life  is  accordingly  the  life  then  in  being  within  which  the  share 
r*977T  ^^^^  necessarily  vest.  But  if  by  a  marriage  settlement  a  fund 
be  settled  in  trust  for  the  father  for  his  life,  and  *afcer  his  de- 

(a)  .Cunynghame  v.  Tliurlow,  1  Russ.  &  My.  436;  Lord  Sandwich's  Case,  cited  11 
Ves.  479;  Gee  v.  Guruey,  2  CoU.  486. 

(h)  Butcher  v.  Jackson,  14  Sim.  444;  Fearon  v.  Desbrisay,  14  Beav.  635. 

(c)  See  ante,  p.  268.  {d)   1  Sugd.  Pow.  249,  495  ;  395,  8th  ed. 

(e)  Co  Litt.  271  b,  n.  (1),  vii.  2;  1  Sugd.  Pow.  498;  396,  8th  ed.  ;■  Routledge  v.  Dor- 
ril,  2  Ves.  jun.  357. 


OF   SETTLEMENTS   OF   PERSONAL   PROPERTY. 


277 


cease  in  trust  for  the  children,  in  such  shares  as  he  shall  appoint  by  his 
will,  he  cannot  make  an  appointment  in  favor  of  any  unborn  child,  to  be 
vested  on  his  attaining  the  age  of  twenty-three  years.  For  in  this  case 
the  limit  of  perpetuities  counts  from  the  date  of  the  settlement,  when  the 
property  was  first  tied  up  for  the  benefit  of  the  children  ;  and  this  limit 
would  be  exceeded  if  the  child  should  not  attain  the  given  age  within 
twenty-one  years  after  the  decease  of  the  father,  who  was  the  life  in 
being  at  the  date  of  the  settlement.  And  the  rule  is,  that  every  limita- 
tion which  may  exceed  in  duration  a  life  or  lives  in  being,  and  twenty- 
one  years  afterwards  (allowing  for  the  period  of  actual  gestation),  is  void 
as  tending  to  a  perpetuity. (/) 

When  personal  property  is  directed  to  be  paid  to  any  persons  at  a 
future  time,  the  leaning  of  the  courts  is  always  in  favor  of  vested  inter- 
ests ;  that  is  to  say,  the  courts  lean  to  that  construction  which  will  give 
to  the  parties  a  present  assignable  and  transmissible  right  to  that  which 
is  not  payable  till  a  future  time.^     Thus  if  a  legacy  be  given  to  a  person 

(/)  See  Principles  of  the  Law  of  Real  Property  242,  1st  ed. ;  251,  2d  ed. ;  259,  3d 
ed.  ;  273,  5th  ed. ;  287,  6th  ed. ;  294,  7th  ed. ;  305,  8th  ed. 


1  The  fundamental  rule,  that  the  inten- 
tion of  the  testator  is  to  govern  the  con- 
struction of  a  will,  is  the  primary  test  to 
discover  whether  a  legacy  is  vested  or 
contingent :  Chighizola  v.  Le  Baron,  Exr., 
21  Ala.  406;  Marr,  Exr.,  v.  McCuUoch, 
Admr.,  6  Port.  (Ala.)  507  ;  Stone  et  al., 
Admrs.,  v.  Massy,  2  Yeates  363  ;  Scott, 
Exr.,  V.  Price,  Exr.,  2  S.  &  R.  59  ;  Lemon- 
ier  V.  Godfroid,  G  Har.  &  Johns.  474.  It 
is  often,  however,  a  matter  of  great  diffi- 
culty, to  decide  whether,  from  the  inten- 
tion of  the  testator,  it  was  designed  that  a 
legacy  should  be  vested  or  contingent : 
Shattuck,  Admr.,  v.  Stedman  et  al.,  Exrs., 
2  Pick.  468. 

The  legal  construction  of  wills  favors 
the  vesting  of  legacies :  Johnson  v.  Valen- 
tine, 4  Sandf.  S.  C.  36 ;  Reed  v.  Buckley, 

5  W.  &  S.  517 ;  Roberts's  Exrs.  v.  Brinker, 
4  Dana  572  ;  Cowdin  v.  Perry  et  al.,  Exrs., 
11  Pick.  503;   The  State  v.  Mann,  3  Har. 

6  Johns.  338;  Eldridge  v.  Eldridge,  9 
Cush.  516;'Manderson  v.  Lukens,  23  Penn. 
St.  31;  Chew's  Ap.,  37  Id.  23;  Young  v. 
Stoner,  Id.  105 ;  Devane  v.  Larkins,  3 
Jones  Eq.  377.     Thus,  words  of  survivor- 


ship are  always  to  be  referred  to  the 
period  of  the  testator's  death,  unless  there 
is  a  plain  intent  to  the  contrary  :  Moore  v. 
Lyons,  25  Wend.  119;  Hulburt  v.  Ericson 
et  al.,  16  Mass.  241  ;  Drayton  v.  Drayton 
et  al.,  1  Dessaus.  325  ;  Elliott  v.  Exrs.  of 
Smith,  Id. ;  Sealy  v.  Laurens,  Id. ;  Fulton 
V.  Fulton,  2  Grant's  Cas.  28 ;  Dominick  v. 
Moore,  2  Bradf.  201. 

Where  time  is  annexed  to  the  payment 
only,  and  not  to  the  gift  itself,  the  legacy 
is  vested ;  Chighizola  v.  Le  Baron,  Exr., 
21  Ala.  406;  Seibert's  Appeal,  13  Penn. 
St.  501 ;  Moore  v.  Smith,  9  Watts  403 ; 
Lamb  v.  Lamb,  8  Id.  184 ;  Bayard  v.  At- 
kins, 10  Penn.  St.  17  ;  Schriver  v.  Cobeau, 
4  Watts  130  ;  Patterson,  surviving  Exr.,  v. 
Hawthorne,  Admr.,  12  S.  &  R.  112;  Ma- 
goffin, Admr.,  v.  Patton  et  al.,  Exrs.,  4 
Rawle  113  ;  Jackson's  Admr.  v.  Subett,  10 
B.  Mon.  572  ;  Furness,  Exr.,  v.  Fox,  1  Cush. 
134;  Ware  v.  Cook,  1  Halst.  Ch.  193; 
Marr,  Exr.,  v.  McCuUough,  Admr.,  6  Port. 
507;  Patterson  v.  Ellis,  11  Wend.  269; 
Donner's  Appeal,  2  W.  &  S.  372  ;  Roberts's 
Exrs.  V.  Brinker,  4  Dana  572  ;  Gregg  et  al. 
V.  Bethea,  6  Port.  (Ala.)  9;  Goddard  v. 


277 


OF    PERSONAL    ESTATE    GENERALLY. 


to  be  payable  when  he  attains  the  age  of  twenty-one  years,  the  legacy  is 
considered  to  be  immediately  vested,  and  -will  accordingly  be  payable  to 
the  administrator  of  the  legatee  in  case  he  should  die  under  age.(^)  So 
if  personal  estate  be  settled  in  trust  for  A.  for  life,  and  after  his  decease 
for  all  his  children  in  equal  shares,  each  of  his  children  will  be  entitled 
to  a  share,  whether  such  child  survive  his  parent  or  not,  and  although 
such  child  should  die  in  infancy.(/<)  If,  however,  the  property  should 
rs^n-DT  consist  of  money  charged  on  *land  or  other  real  estate,  such  as 
^  *"  the  portions  of  younger  children  Avhen  the  family  estate  is  en- 

tailed on  the  eldest  son,  the  rule  is  different ;  and  if  any  of  the  children 
should  die  before  the  time  when  his  or  her  portion  becomes  payable,  it 
will,  in  the  absence  of  special  provision  to  the  contrary,  sink  into  the 
land  for  the  benefit  of  the  estate.(e) 

In  the  settlement  of  personal  property  upon  children  there  are  two 
plans,  either  of  which  may  be  adopted  with  respect  to  the  vesting  of  the 
interests  given.     The  one  plan  is,  to  vest  the  interests  of  the  children  in 

{q)  2  Black.  Comm.  513 ;  Co.  Litt.  237  a,  note  (1). 

(h)  Skey  v.  Barnes,  3  Mer.  335;  Templeton  v.  Warrington,  13  Sim.  267.  See  Swallow 
V.  Binns,  1  Kay  &  John.  417. 

(i)  Co.  Litt.  237  a,  n.  (1).     See  Evans  v.  Scott,  1  H.  of  L.  C,  43,  57. 


Johnson,  Exr.,  14  Pick.  352  ;  Lemonier  v. 
Godfroid,  6  Har.  &  Johns.  474;  Boone  v. 
Sinkler,  1  Bay  369;  Carpenter  v.  Heard, 
14  Pick.  449 ;  Gifford  v.  Thorn,  1  Stockt. 
702;  Bowman's  Ap.,  34  Penn.  St.  19; 
Burd's  Exr.  r.  Burd's  Admr.,  40  Id.  182; 
Roome  v.  Phillips,  24  N.  Y.  463  ;  Snow  v. 
Snow.  49  Maine  159;  Colt  v.  Hubbard,  33 
Conn.  281  ;  and  in  like  manner,  when  the 
division,  merely,  of  the  property,  is  post- 
poned to  a  future  time,  and  not  its  dis- 
tribution, the  legacy  is  considered  vested: 
Spruill  V.  Moore,  5  Ircd.  Eq.  287;  Womack 
V.  Greenwood,  6  Geo.  299;  Smith  v.  Wise- 
man, 6  Ired.  Eq.  540 ;  McLemore  v.  Mc- 
Lemore,  8  Ala.  687  ;  Christian  v.  Christian, 
3  Port.  (Ala.)  351 ;  Etheridge,  Admr.,  v. 
Bell,  5  Ired.  87 ;  Candler  v.  Dinkle,  4 
Watts  143  ;  Fanty  v.  Kline,  Penning.  551. 

If  something  out  of  the  principal  is  to 
be  immediately  paid  to  the  legatee,  or  ap- 
propriated in  his  favor,  the  legacy  will  be 
Tested;  as  the  giving  of  interest  on  the 
principal  sum  until  the  time  of  payment 
arrives  :  Schriver  v.  Cobeau,  4  Watts  130; 


Heleman  v.  Heleman  et  al.,  4  Rawle  440 
King  V.  King,  1  W.  &  S.  205  ;  Marr,  Exr., 
V.  McCullough,  Admr.,  6  Port.  507  ;  Patter- 
son V.  Ellis,  11  Wend.  269;  Hopkins  v. 
Jones,  2  Penn.  St.  69;  Kelso  v.  Dickey,  7 
W.  &  S.  279  ;  Lemonier  v.  Godfroid,  6  Har. 
&  Johns.  474;  Boone  v.  Sinkler,  Exr.,  1 
Bay  369 ;  Cassilly  et  al.  i'.  Meyer  et  al.,  4 
Md.  1. 

When  there  is  a  gift  to  a  class  of  per- 
sons, to  take  effect  in  enjoyment  at  a 
future  period,  the  property  vests  in  the 
persons  as  they  come  in  esse,  subject  to  be 
opened  and  let  in  others,  as  they  may  be 
born  afterwards :  Johnson  v.  Valentine,  4 
Sandf.  S.  C.  36 ;  Barnes  et  al.  v.  Prevost 
et  al.,  4  Johns.  61 ;  and  see,  also.  Hall  v. 
Eddy,  2  Green  169;  Ward  v.  Saunders,  3 
Sneed  387  ;  Yeaton  v.  Roberts,  8  Foster 
459;  Cooper  v.  Hepburn,  15  Gratt.  551; 
Nichols  V.  Denny,  37  Miss.  59;  Tucker  v. 
Bishop,  16  N.  Y.  402  ;  Hocker  v.  Gentry,  3 
Mete.  (Ky.)  463;  Chambers  v.  Payne,  6 
Jones  Eq.  275. 


OF  SETTLEMENTS  OF  PEKSONAL  PROPERTY.  278 

them  immediately  as  they  come  into  being,  divesting  from  each  of  them 
proportionate  shares  as  others  are  born,  and  also  divesting  the  shares 
altogether  in  favor  of  the  others,  in  the  event  of  the  decease  of  any  son 
under  age,  or  of  any  daughter  under  age  and  without  having  been  mar- 
ried. The  other  plan  is,  to  vest  the  interests  given  only  in  those  who, 
being  sons,  attain  the  age  of  twenty-one  years,  or,  being  daughters, 
attain  that  age  or  marry  under  it.  So  far  as  the  corpus  of  the  fund  is 
concerned,  the  result  of  each  of  these  plans  is  the  same,  the  property 
being  ultimately  divided  only  amongst  those  children  who,  being  sons, 
live  to  come  of  age,  or,  being  daughters,  come  of  age  or  previously 
marry.  But  with  regard  to  the  income  of  the  fund  the  plans  are  diflFerent. 
In  the  first  case,  the  income  belongs  to  the  children  whilst  under  age  ;  but 
in  the  second  no  interest  either  in  the  income  or  in  the  principal  is  given 
during  minority,  or,  in  the  case  of  daughters,  until  marriage  under  age.  In 
the  first  case,  therefore,  if  the  father  be  dead,  the  income  will  be  payable 
to  the  guardian  of  the  children  toward  their  maintenance  and  education  ; 
but  in  the  second  case  there  will  be  no  provision  for  these  purposes  in  the 
*absence  of  express  directions.  Such  directions  therefore  should  poTQi 
in  such  case  be  always  inserted,  with  a  provision  for  the  accumu- 
lation of  the  surplus  income  by  way  of  increase  of  the  principal.  If, 
however,  the  whole  property  is  ultimately  to  go  amongst  the  children,(A:) 
or  if  the  persons  entitled,  in  the  event  of  the  children  not  living  to  at- 
tain vested  interests,  should  agree,(Z)  the  Court  of  Chancery  will  direct 
the  income  to  be  applied  for  the  children's  maintenance  in  the  absence  of 
sufficient  provision  for  that  purpose,  and  even  in  the  face  of  an  express 
direction  to  accumulate  the  income. (m)  And  a  recent  act  of  parliament 
now  provides  that,  in  all  cases  where  any  property  is  held  by  trustees  in 
trust  for  an  infant,  either  absolutely  or  contingently  on  his  attaining  the 
age  of  twenty-one  years,  or  on  the  occurrence  of  any  event  previously  to 
his  attainincr  that  age,  it  shall  be  lawful  for  such  trustees,  at  their  sole 
discretion,  to  pay  to  the  guardians  (if  any)  of  such  infant,  or  otherwise 
to  apply  for  or  towards  the  maintenance  or  education  of  such  infant,  the 
whole  or  any  part  of  the  income  to  which  such  infant  may  he  entitled  in 
respect  of  such  property,  whether  there  be  any  other  fund  applicable  to 
the  same  purpose,  or  any  other  person  bound  by  law  to  provide  for  such 
maintenance  or  education,  or  not  ;  and  such  trustees  shall  accumulate 
all  the  residue  of  such  income  by  way  of  compound  interest,  by  invest- 
ing the  same  and  the  resulting  income  thereof  from  time  to  time  in  pro- 

(*)  Haley  v.  Bannister,  4  Mad.  275  ;  Errat  v.  Barlow,  14  Ves.  202. 
{I)  Turner  v.  Turner,  4  Sim.  430  ;  Cannings  v.  Flower,  7  Sim.  523. 
(tti)  Greenwell  v.  Greenwell,  5  Ves.  194. 


279  OF  PERSONAL  ESTATE  GENERALLY. 

per  securities,  for  the  benefit  of  the  person  who  shall  ultimately  become 
entitled  to  the  property  from  which  such  accumulations  shall  have  arisen  : 
provided  always,  that  it  shall  be  lawful  for  such  trustees  at  any  time,  if 
it  shall  appear  to  them  expedient,  to  apply  the  whole  or  any  part  of  such 
r*9Rm  *accumulations  as  if  the  same  were  part  of  the  income  arising 
in  the  then  current  ycar.(w)  This  enactment  applies  only  to 
deeds  executed,  and  wills  executed  or  confirmed  or  revived  by  codicil 
executed  after  the  passing  of  the  act,  which  took  place  on  the  28th  of 
August,  1860.(0)  The  act,  it  will  be  observed,  applies  only  to  income 
to  which  the  infant  may  be  entitled;  so  that  if  the  infant  should  not  be 
entitled  to  the  income  irrespectively  of  the  act,  it  would  scarcely  be  safe 
for  the  trustees  to  apply  it  for  the  infant's  maintenance  without  express 
authority. 

In  marriage  settlements  a  life  interest  is  usually  and  properly  given 
to  the  father  and  mother,  so  that  no  provision  is  required  for  the  main- 
tenance of  the  children  until  after  the  decease  of  the  survivor.  And 
where  life  interests  are  not  given  to  the  parents,  but  provision  is  made 
for  the  maintenance  of  the  children  during  the  father's  lifetime  out  of 
the  settled  fund,  such  provision  is  considered  as  primarily  applicable  for 
the  maintenance  of  the  children  accordingly. (^)  But  the  general  rule  is, 
that  every  father  is  bound  to  maintain  his  children,  if  of  ability  so  to 
do  ;{q)  and  a  provision  contained  in  a  gift  to  an  infant  child,  for  his 
maintenance  and  education,  will  not  be  applied  for  that  purpose  during 
his  father's  lifetime,  if  the  father  is  able  to  maintain  him  in  a  manner 
suitable  to  his  condition  and  prospects. (r)^     When,  therefore,  it  is  in- 

(w)  Stat.  23  &  24  Vict.  c.  145,  s.  26.  (o)  Sect.  34. 

(p)  Stocken  v.  Stocken,  4  Sim.  152  ;  Meacher  v.  Younge,  2  Myl.  &  K.  490  ;  Ransome 
V.  Burgess,  V.-C.  K.,  Law  Rep.  3  Eq.  113.  See  Thompson  v.  Griffin,  1  Craig  & 
Phillips  317, 

(q)  Andrews  v.  Partington,  3  Bro.  C.  C.  60. 

(r)  Maberley  v.  Turton,  14  Ves.  499  ;  Jervoise  v.  Silk,  G.  Cooper  52  ;  Ex  parte  Wil- 
liams, 2  Collyer  740. 

1  A  father  will  not  be  allowed  for  the  2  Dessauss.  94  ;  In  the  matter  of  Harland's 

maintenance  and   education   of  his  chil-  Accounts,  5  Rawle  323  ;  Dawes  v.  Howard 

dren,   out  of  their  fortunes,   if  he   is  of  et    al.,    4    Mass.    97  ;    Guion    v.    Guion's 

ability  to  support  them  :  In  the  matter  of  Admr.,   16    Mo.   52  ;    Sparhawk   et   al.   v. 

Kane   et  al.,  2  Barb.   Ch.  375  ;  Walker  et  Admr.  of  Buell  et  al.,  9  Vt.  70  ;  Presley  v. 

al.  V.   Prowder  et  al.,  2    Ired.   Eq.   478;  Davis,  7  Rich.  Eq.  105;  Harring  v.  Coles, 

Whilden  et"  al.  v.   Whilden    Exr.,   et  al.,  2  Bradf.  349  ;  Hines    v.    Mullins,    25    Geo. 

Riley   Ch.  Cas.   205;  Addison  v.  Bowie,  2  696;  Phelan.r.   Phelan,  12  Fla.  449  ;  and 

Bland    Ch.  606  ;  In   the  matter  of   Bost-  this  is  true  also,  where  the  child,  by  tlie 

wick,  4  Johns.  Ch.  100  ;  Jones  v.  Stockett,  father's  consent,  is    in  the   custody  of  the 

2    Bland   Ch.    431  ;  Crugar   v.  Haywood,  mother,  who  has  been  guilty  of  miscon- 


OF   SETTLEMENTS   OF    PEKSONAL    PROPERTY. 


280 


tended  that  the  income  of  property  given  to  children  should  be  applied  to 
their  maintenance  during  their  father's  lifetime,  Avithout  *refer-  r^Qo-i-i 
ence  to  his  ability  to  maintain  them,  the  application  of  the  in- 
come, without  reference  to  his  ability,  should  be  expressly  directed; 
and,  if  such  application  be  so  directed,  the  income  must  of  course  be  ap- 
plied accordingly. (s)  When  two  funds  are  provided  for  the  maintenance 
of  an  infant,  it  is  frequently  difficult  to  decide  to  which  fund  recourse 
should  be  first  had.^  The  general  rule  is,  that  the  interest  of  the  infant 
determines  the  order  of  application  ;{t)  but,  in  order  to  avoid  questions, 
it  is  very  desirable,  when  two  funds  are  provided  for  an  infant's  mainte- 
nance, to  direct  that  one  of  them  shall  be  in  aid  only  of  the  provision 
afforded  by  the  other.     But  the  act  to  which  we  have  just  referred  gives, 


(s)  See  Wetherell  v.  Wilson  1  Keen  80 
(t)  Foljambe   v.   Willoughby,    2    Sim. 
Sim  41. 


;  White  v.  Grane,  18  Beav.  571. 
&    Stu.    165  ;  Lygon    v.    Lord    Coventry,  14 


duct :  Gill  v.  Read,  5  R.  I.  343  ;  but  the 
father's  situation  in  life,  the  future  pros- 
pects of  the  children,  the  extent  of  their 
fortune,  and  all  other  circumstances, 
must  be  taken  into  consideration  in  deter- 
mining the  ability  of  the  father  :  In  the 
matter  of  Kane  et  al.,  2  Barb.  Ch.  375  ; 
Walker  et  al.  v.  Crowder  et  al.,  2  Ired. 
Eq.  478;  Ellerbe  v.  The  Heirs,  &c.,  of 
Ellerbe,  1  Speer  Eq.  328  ;  Brown  v.  De- 
loach,  28  Geo.  486  ;  Alston  v.  Alston,  34 
Ala.  15. 

The  case  is,  of  course,  different  where 
the  father  is  not  of  ability :  Myers  v. 
Myers,  2  McCord  Ch.  255  ;  Dawes  v. 
Howard  et  al.,  4  Mass.  97  ;  Newport  et  al. 
V.  Cook  et  al.,  2  Ash.  332  ;  Tompkins  v. 
Tompkins,  3  Green  303  ;  and  where,  on 
that  account,  sums  from,  the  child's  in- 
come have  been  paid  over  to  the  father, 
by  the  trustee  of  the  child,  in  the  due 
exercise  of  his  discretion,  for  the  support 
of  the  child,  it  has  been  held,  that  no 
promise  of  repayment  can  be  implied,  on 
account  of  a  subsequent  change  for  the 
better,  in  the  circumstances  of  the  father  : 
Pearce  v.  Olney,  5  R.  I.  269  ;  and  it  seems 
that  a  mother  will  be  allowed  for  the  sup- 
part  of  her  children,  out  of  their  estates, 
notwithstanding  she  may  be  of  ability  to 
maintain  them  :  Wilkes  v.  Rogers  et  al.,  6 
Johns.  506  ;  Whipple  v.  Dow,  2  Mass.  415; 


Dawes  v.  Howard  et  al.,  4  Id.  97  ;  Guion 
V.  Guion's  Admr.,  16  Mo.  52  ;  Osborne  v. 
Van  Horn  et  al.,  2  Florida  360.  But 
where  a  mother  has  maintained  a  child, 
she  will  not  be  allowed  to  recover  what 
she  has  expended,  upon  an  implied  promise 
of  the  child  to  refund,  for  the  law  will 
presume  that  she  has  furnished  her  means 
gratuitously  :  Cummings  v.  Cummings,  8 
Watts  366  ;  and  the  same  is  true  of  a  step- 
father :  Brown  v.  Sockwell,  26  Geo.  380  ; 
Gillett  V.  Camp,  27  Mo.  541  ;  Brush  v. 
Blanchard,  18  HI.  46. 

In  all  cases,  however,  the  court  will 
consult  the  permanent  interests  of  the 
children  :  In  the  matter  of  Burke,  4  Sand. 
Ch.  617  ;  and  will  make  exceptions  to 
ordinary  rules  of  law  in  their  favor,  as 
has  been  done  by  allowing  interest  upon 
legacies  left  to  children,  from  the  time  of 
the  death  of  the  testator,  where  there  was 
no  other  means  of  support:  Sullivan  v. 
Winthrop  et  al.,  1  Sumn.  1  ;  Miles  v.  Wis- 
ter,  5  Binn.  479  ;  Lupton  et  al.  v.  Lupton 
et  al.,  2  Johns.  Ch.  614;  Leiby's  Ap.,  49 
Penn.  St.  182. 

1  Where  a  fund  has  been  appropriated 
to  the  maintenance  and  education  of  chil- 
dren, it  must  be  completely  exhausted 
before  a  further  allowance  will  be  made 
by  the  court :  In  the  matter  of  Davison 
et  al  ,  5  Paige  Ch.  136. 


281  OF    PERSONAL    ESTATE    GENERALLY. 

as  we  have  scen,(?<)  a  disscrption  to  the  trustees  to  apply  the  income  of 
of  the  infant's  property  f<>i"  his  inaintenancc,  whether  there  be  any  other 
fund  applicable  to  the  same  purpose,  or  any  other  person  bound  by  law 
to  provide  for  such  maintenance  or  education,  or  not. 

In  settlements  of  personal  property,  it  has  long  been  usual  to  provide 
for  the  investment  of  the  fund  settled  in  the  parliamentary  stocks  or 
public  funds  of  Great  Britain,  or  at  interest  upon  government  or  real 
securities  in  England  or  Wales,  but  not  in  Ireland;  and  at  the  present 
dav  investments  in  railway  debentures,  preference  shares  and  other  se- 
curities yielding  a  larger  income,  are  often  authorized.  Government 
securities,  as  distinguished  from  stocks  or  funds,  seem  to  be  nothing  else 
than  Exchequer  bills,  in  which  trustees  appear  to  be  justified,  even 
without  express  authority,  in  investing  the  property  for  any  temporary 
r*9«o-i  purpose,  as  during  the  necessary  delay  in  completing  a  *contem- 
'-  '^  "  plated  mortgage  security. (r)  But  whore  a  permanent  investment 
is  intended,  a  trust  to  lay  out  money  in  government  securities  will  not 
authorize  the  purchase  of  Exchequer  bills. (w)  Real  security  means  the 
mortgage  of  real  estate,  namely,  freehold  or  copyhold  hereditaments  of 
sufficient  value.(2:)  And  if  it  be  desired  that  the  trustees  should  have 
power  to  invest  the  trust  money  on  mortgage  of  leasehold  estates,  or  in 
railway  debentures, (,?/)  or  shares,  or  any  other  securities,  or  to  lend  it  to 
any  person  on  his  bond,  express  authority  ought  to  be  given  to  the  trustees 
for  the  purpose.  But  the  Improvement  of  Land  Act,  1864,  now  pro- 
vides, that  all  trustees,  directors  and  other  persons  who  may  be  directed 
or  authorized  to  invest  any  money  on  real  security  shall  (unless  the  con- 
trary be  provided  by  the  instrument  directing  or  authorizing  such  invest- 
ments) have  power  at  their  discretion  to  invest  money  in  the  charges 
authorized  by  that  act,  or  on  mortgages  thereof.(2:)  And  it  is  further 
provided,  that  no  charge  on  land  made  by  any  absolute  order  of  the  In- 
closure  Commissioners  by  virtue  of  that  act  shall  be  deemed  such  an 
incumbrance  as  shall  preclude  a  trustee  of  money,  with  power  to  invest 

(u)  Ante,  pp.  2T9,  280, 

(r)  Matthews  v.  Brise,  6  Beav.  239,  244. 

(w)  Ex  parte  Chaplin,  8  You.  &  Col.  397  ;  as  to  the  issue  of  Exchequer  Bills,  see 
Stat.  24  Vict.  c.  5. 

(z)  See  Stickney  v.  Sewell,  1  Myl.  &  Cr.  8  ;  Phillipson  v.  Gatty,  7  Hare  516  ;  Mant  v. 
Leith,  15  Beav.  524;  Drosier  v.  Brereton,  15  Beav.  221.  Turnpike  bonds  are  real  se- 
curities for  some  purposes :  Robinson  v.  Robinson,  Lords  Justices,  1  De  G.,  M.  &  G. 
247,  272. 

(y)  Mortimore  v.  Mortimore,  4  De  G.  &  J.  472. 

(z)  Stat.  27  &  28  Vict.  c.  114,  s.  60. 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY.  282 

the  same  in  the  purchase  of  land  or  on  mortgage,  from  investing  it  in  a 
purchase  or  upon  a  mortgage  of  the  land  so  charged,  unless  the  terms  of 
his  trust  or  power  expressly  provide  that  the  land  to  be  so  purchased  or 
taken  in  mortgage  be  not  subject  to  any  prior  charge.(a)  Investments 
in  *Ireland  were  often  expressly  prohibited,  on  account  of  an  r*283"i 
act  of  parliament,  which  empowered  trustees,  who  were  author- 
ized by  their  trust  to  lend  money  at  interest  on  real  securities  in  England, 
"Wales  or  Great  Britain,  to  lend  the  same  at  interest  on  real  securities  in 
Ireland.(5)  But  all  loans  of  money  on  real  securities  in  Ireland  under 
the  act,  in  which  any  minor  or  unborn  child,  or  person  of  unsound  mind, 
might  be  interested,  were  required  to  be  made  by  the  direction  and  under 
the  authority  of  the  Court  of  Chancery  in  England,  to  be  obtained  in 
any  cause  or  upon  petition  in  a  summary  way  ;(c)  and  every  such  loan 
was  to  be  made  with  the  consent  of  the  person  or  persons,  if  any,  whose 
consent  might  be  required  as  to  the  investment  of  such  money  upon  real 
securities  in  England,  Wales  or  Great  Britain,  testified  in  the  manner 
required  by  the  trust.((i)  And  it  was  also  provided  that  the  act  should 
not  apply  to  cases  where  there  was  an  express  restriction  against  the 
investment  of  the  trust  money  on  securities  in  Ireland. (e)  A  recent 
statute  now  provides,  that  when  a  trustee,  executor  or  administrator  shall 
not,  by  some  instruments  creating  his  trust,  be  expressly  forbidden  to 
invest  any  trust  fund  on  real  securities  in  any  part  of  the  United 
Kingdom,  or  on  the  stock  of  the  Bank  of  England  or  Ireland,  or  on  East 
India  Stock,  it  shall  be  lawful  for  such  trustee,  executor  or  administrator 
to  invest  such  trust  fund  on  such  securities  or  stock ;  and  he  shall  not  be 
liable  on  that  account  as  for  a  breach  of  trust,  provided  that  such  in- 
vestments shall  in  other  respects  be  reasonable  and  proper.(/)  This 
provision  *has  been  made  retrospective  by  act  of  parliament.(^)  r*2841 
And  by  a  subsequent  act  of  parliament  the  term  "  East  India 
Stock,"  as  above  used,  has  been  explained  to  mean  as  well  East  India 
Stock  then  existing  as  East  India  Stock  charged  on  the  revenues  of 
India  and  created  under  any  act  or  acts  of  parliament  which  subsequently 
received  the  royal  assent.(A)     A  further  enactment  empowers  the  making 

(a)  Stat.  27  &  28  Vict.  c.  114,  s.  61. 

(6)  Stat.  4  &  5  Will.  IV.  c.  29.  Leaseholds  for  lives  perpetually  renewable  at  a  head 
rent  form  real  securities  in  Ireland  :  Macleod  v.  Annesley,  16  Beav.  600. 

(c)  Stat.  4  &  5  Will.  IV.  c.  29,  s.  2;  Ex  parte  French,  7  Sim.  510;  Ex  parte  Lord 
William  Pawlett,  1  Phill.  570  ;  Norris  v.  Wright,  14  Beav.  291. 

{d)  Sect.  4.  (e)  Sect.  5. 

(/)  Stat.  22  &  23  Vict.  c.  35,  s.  32. 

{g)  Stat.  23  &  24  Vict.  c.  38,  s.  12  ;  Cockburn  v.  Peel,  3  De  G.,  F.  &  J.  170;  Hume 
V.  Richardson,  4  De  G.,  F.  &  J.  29. 

[h)  Stat.  30  &  31  Vict.  c.  132. 


284  OF  PERSONAL  ESTATE  GENERALLY. 

of  general  orders  from  time  to  time  as  to  the  investment  of  cash  under 
the  control  of  the  Court  of  Chancery,  and  for  the  conversion  of  any  3Z. 
per  Cent.  Bank  Annuities,  standing  in  the  name  of  the  accountant- 
general  of  the  Court  of  Chancery,  in  trust  in  any  cause  or  matter,  into 
any  stocks,  funds,  or  securities,  upon  Avhich  by  any  such  general  order 
cash  under  the  control  of  the  court  may  be  invested. (^)  And  when  any 
such  general  order  shall  have  been  made,  trustees,  executors  or  adminis- 
trators, having  power  to  invest  their  trust  funds  upon  government  secu- 
rities, or  upon  parliamentary  stocks,  funds  or  securities,  or  any  of  them, 
may  invest  such  trust  funds  or  any  part  thereof  in  any  of  the  stocks, 
funds  or  securities,  in  or  upon  which,  by  such  general  order,  cash  under 
the  control  of  the  court  may  from  time  to  time  be  invested. (/)  In  pur- 
suance of  this  enactment  a  general  order  has  been  made  dated  the  1st  of 
February,  1861,  authorizing  the  investment  of  cash  under  the  control  of 
the  court  in  Bank  Stock,  East  India  Stock,  Exchequer  Bills,  and  21. 10s. 
per  Cent.  Annuities,  and  upon  mortgage  of  freehold  and  copyhold 
estates  respectively  in  England  and  "Wales,  as  well  as  in  Consolidated  SI. 
per  Cent.  Annuities,  Reduced  3?.  per  Cent.  Annuities,  and  New  3?.  per 
Cent.  Annuities.(A;). 

P^^Q  *A  still  later  enactment  of  the  same  session  authorizes  trustees, 

having  trust  money  in  their  hands  which  it  is  their  duty  to 
invest  at  interest,  at  their  discretion  to  invest  the  same  in  any  of  the 
parliamentary  stocks  or  public  funds,  or  in  government  securities,  and  at 
their  discretion  to  call  in  any  trust  funds  invested  in  any  other  securities, 
and  to  invest  the  same  on  any  such  securities  as  aforesaid,  and  also  from 
time  to  time  at  their  discretion  to  vary  any  such  investments  as  aforesaid 
for  others  of  the  same  nature;  provided  that  no .  such  original  invest- 
ment as  aforesaid  (except  in  3?.  per  Cent.  Consolidated  Bank  Annuities), 
and  no  such  change  of  investment  as  aforesaid,  shall  be  made  where 
there  is  a  person  under  no  disability  entitled  in  possession  to  receive  the 
income  of  the  trusts  fund  for  his  life  or  for  a  term  of  years  determinable 
with  his  life,  or  for  any  greater  estate,  without  the  consent  in  writing  of 
such  person. (?)  This  last  enactment,  however,  like  the  other  provisions 
in  the  same  act,  extends  only  to  persons  acting  under  a  deed  executed,  or 
a  will  executed  or  confirmed  or  revived  by  a  codicil  executed  afterthe 
28th  of  August,  18(30,  the  date  of  the  act.(w) 

(t)  Stat.  23  &  24  Vict.  c.  38,  s.  10.  (/)  Sect.  11. 

{k)  See  Equitable  Reversionary  Interest  Society  v.  Fuller,  1  ^ohn.  &  Hem.  379  ;  Re 
Langford,  2  John.  &  Hem.  458  ;  Re  Warde,  2  John.  &  Hem.  191. 
(l)  Stat.  23  &  24  Vict.  c.  145,  s.  25.  (m)   Sect.  34. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.  285 

The  consent  of  the  persons  for  the  time  being  entitled  to  the  income 
of  the  property  is  generally  required,  in  settlements,  to  any  change  of 
investment  Avhich  the  trustees  may  be  authorized  to  make;  and  this  con- 
sent is  sometimes  required  to  be  in  writing,  and  occasionally  to  be  testified 
by  deed.  Where  consent  is  required,  it  must  be  given  previously  to  or 
at  the  time  of  the  change  of  investment  ;(m)  for  as  the  consent  is  required 
as  a  *check  upon  the  trustees,  a  subsequent  consent,  when  the  r*2861 
mischief  may  be  done,  is  evidently  unavailing.  The  person 
whose  consent  is  required  is  not,  however,  the  sole  judge  of  the  pro- 
priety of  any  change  of  investment:  the  trustee,  by  virtue  of  his  office, 
has  also  a  discretion;  and  if  he  should  consider  the  investment  ineligible, 
he  may  refuse  to  make  it,  although  requested  so  to  do  by  the  person 
whose  consent  ought  to  be  obtained.(o)  But  the  terms  of  the  instrument 
may  require  the  trustees  to  change  the  investments  at  the  request  of  any 
given  person ;  and  in  this  case  they  will  generally  be  bound  to  act  accor- 
dingly, unless  the  circumstances  of  the  case  should  be  such  as  were 
evidently  not  contemplated  when  the  settlement  was  made.(j?) 

In  settlements  of  personal  property  authority  is  sometimes  given  to 
the  trustees  to  make  investments  in  the  purchase  of  landed  estates.  As 
land  devolves  in  a  diiferent  manner  from  personal  property,  it  is  obvious 
that  a  simple  change  of  property  from  personalty  to  land  would  in  many 
cases  materially  disarrange  the  destination  of  the  property.  Thus  if  a 
person  entitled  under  the  settlement  to  a  revisionary  interest  in  the 
settled  fund  should  have  died  intestate,  his  administrator  would  be  entitled 
to  such  interest,  so  long  as  the  property  continued  personal,  but,  on  its 
being  changed  into  real  estate,  it  would  shift  to  his  heir-at-law.  In 
order  to  obviate  this  inconvenience,  it  is  so  contrived  that  the  lands  to  be 
purchased  should,  from  the  moment  the  purchase  is  made,  be  considered 
as  personal  property.^     To  effect  this  object,  the  lands  when  purchased 

(n)  Bateman  v.  Davis,  3  Madd.  98;  Greeaham  v.  Gibbson,  10  Bing.  363  (E.  C.  L.  R. 
vol.  25) ;  Wiles  v.  Gresham,  2  Drewry  258. 

(o)  Lee  V.  Young,  2  You.  &  Col.  N.  C.  532. 

(p)  Boss  V.  Godsall,  1  You.  &  Col.  N.  C.  617;  Cadogan  v.  Earl  of  Essex,  2  Drewry 
227. 


1  It  is  a  well-established  rule  of  equity,  Peter,  Exr.,   et  al.,  v.  Beverly  et  aL,  10 

that  where  land  is  directed  to  be  sold,  and  Peters    534;   Hawley   et  al.   v.    James    et 

thereby  converted  into  money,  it  shall  be  al.,  5  Paige   Ch.  318;  Smith  et|al.  v.  Mc- 

considered  as  money;    and    that   money,  Crary   et  al.,  3  Ired.  Eq.  204;  Golt  et  al., 

which  is  to  be  employed  in  the  purchase  Exrs.    v.   Cook   et  al.,    7   Paige   Ch.   521; 

of  hand,  shall  be   regarded   as   real  pro-  Kane  v.   Golt  et  al..  Id. ;   s.  c,  24  Wend, 

perty:    Craig    v.   Leslie,    3    Wheat.   377;  641;  The  Commonwealth  t).  Martin's  Exrs. 


286 


OF    PERSONAL    ESTATE    GENERALLY. 


are  directed  to  be  held  by  the  trustees  upon  trust  to  sell  them,  -with  the 

r*o&7-[    consent  of  the  equitable  tenant  for  life,  during  their  *lives,  and 

after  their  decease  at  the  discretion  of  the  trustees.(5')     '^his  trust 

(q)  See  Appendix  B. 


&c.,  5  Munf.  121;  Pratt  v.  Talli.aferro,  3 
Leigh  419;  Siter  et  aL  v.  McGIanchan  et 
aL,  2  Gratt.  280 ;  Reading  v.  Blackwell, 
1  Baldw.  166;  Fairly  v.  Kline,  Penning. 
551;  Hurlt  v.  Fisher,  1  Har.  &  Gill.  88; 
Leadenham's  Exr.  t'.  Nicholson  et  al.,  Id. 
267;  Morrow  v.  Brenizer,  2  Rawle.  185; 
Burr  V.  Sim  et  al.,  1  Whart.  252;  Allison 
Exr.  V.  Wilson's  Exrs.,  13  S.  &  R.  332; 
Price  V.  Watkins,  1  Dall.  8;  Rice  v.  Bix- 
ler,  1  W.  &  S.  445;  Willing  v.  Peters,  7 
Penn.  St.  287;  Lorillard  et  al.  v.  Coster  et 
al.,  5  Paige  Ch.  172;  Drake  v.  Pell,  3 
Edwd.Ch.  267;  Rineharti'.  Harrison's  Exrs. 
1  Baldw.  177;  Marsh  v.  Wheeler,  2  Edwd. 
Ch.  160;  Tazewell  et  al.  t-.  Smith,  Admr., 
1  [Rand.  313;  Parkinson's  Est.,  32  Penn. 
St.  457;  Holland  v.  Craft,  3  Gray  162; 
Loughborough  v.  Loughborough,  14  B. 
Mon.  549;  High  r.  Worley,  33  Ala.  196; 
Forsyth  v.  Rathbone,  34  Barb.  388;  Dun- 
das's  Ap.,  64  Penn.  St.  325,  and  the  con- 
version is  so  effectual,  that  where  real 
estate  was  directed  to  be  sold  by  will,  it 
was  considered  as  so  converted  at  the 
death  of  the  decedent,  that  a  purchaser 
at  an  execution,  of  an  heir's  interest,  ac- 
quired no  title  therein:  Brolasky  v.  Gaily, 
51  Id.  509 ;  and  the  conversion  will  operate, 
through  the  gift  to  which  the  proceeds 
were  to  be  applied  is  void  under  the 
statute:  Evan's  Ap.,  63  Id.  1830.  This 
rule  will  apply,  even  though  the  sale  or 
purchase  is  not  to  be  made  until  a  future 
time,  provided  there  is  no  contingency, 
upon  the  happening  or  not  happening  of 
which,  the  intended  conversion  will  be 
defeated:  Reading  v.  Blackwell,  1  Baldw. 
166;  Fairly  i).  Kline,  Penning.  551;  Price 
V.  Watkins,  1  Dall.  8;  Rinehart  v.  Harri- 
son's Exrs.,  1  Baldw.  177;  Brothers  v. 
Cartwright,  2  Jones  Eq.  113;  Harcura  v. 
Hudnall,  14  Gratt.  369;  Hocker  v.  Gentry, 
3  Mete.  (Ky.)  363.  But  where  the  intend- 
ed transformation  is  to  be  effected  upon 


a  contingency,  there  will  be  no  conversion 
until  that  contingency  has  happened: 
Evans  v.  Kingsberry,  2  Rand.  120;  Storer 
V.  Zimmerman,  21  Penn.  St.  324;  Clay  et 
al.  V.  Hart,  7  Dana  11 ;  Nagle's  Appeal,  13 
Penn.  St.  260;  Bleight  v.  Manufac.  & 
Mechan.  Bank,  10  Id.  132 ;  Wright  v.  The 
Trustees  of  the  M.  E.  Church,  I  Hoff.  213; 
Henry  v.  McCloskey,  9  Watts  142;  Ane- 
walt's  Ap.,  42  Penn.  St.  414 ;  Ross  v.  Drake, 
37  Id.  373;  Millers  &  Bowman's  Ap.,  60  Id. 
404,  and  a  mere  authority  to  sell  at  dis- 
cretion, and  not  a  positive  direction  does 
not  work  a  conveslon:  Drayton's  Ap.,  61 
Id.  172.  Where  land  is  directed  to  be 
sold  for  a  particular  purpose,  and  is  sold 
accordingly,  and  there  is  a  balance  of 
money  after  the  accomplishment  of  the 
purpose  for  which  the  sale  was  made, 
that  money  will  be  considered  as  land, 
unless  the  testator,  donor,  or  other  person 
by  whose  direction  the  conversion  was 
made,  has  clearly  shown  that  it  was  his 
wish  that  the  character  of  personalty 
should  be  stamped  upon  the  whole  pro- 
perty; and  this  rule  applies  equally,  where 
a  part  of  the  fund  is  sufficient  to  accom- 
plish a  purpose  to  be  attained  through  the 
purchase  of  land  :  Craig  v.  Leslie,  3  Wheat. 
577;  Hawley  et  al.  v.  James  et  al.,  5  Paige 
Ch.  318;  Smith  et  al.  v.  McCrary  et  al.,  3 
Ired.  Eq.  204;  The  Commonwealth  v. 
Martin's  Exrs.,  5  Munf.  121;  by  this  last 
case  it  seems  that  the  conversion  will  not 
be  enforced,  if  it  should  operate  inju- 
riously upon  the  beneficiary,  so  as  to 
thwart  or  turn  aside  the  bounty  of  the 
grantor,  for,  to  quote  the  words  of  Judge 
Coulter,  "  Money  directed  to  be  employed 
in  the  purchase  of  land,  and  land  directed 
to  be  sold  and  turned  into  money,  are  to 
be  considered  as  that  species  of  property 
into  which  they  are  directed  to  be  con- 
verted. ...  It  is  also  an  established  prin- 
ciple, that,  if  a  party  having  such  fund 


OF  SETTLEMENTS  OF  PEKSONAL  PROPERTY,  287 

for  sale  converts  the  land  into  money  in  the  contemplation  of  equity;  for 
it  is  a  rule  of  equity,  that  whatever  is  agreed  to  done  shall  be  considered 
as  done  already.  In  the  words  of  Sir  Thomas  Sewell,(r)  "Nothing  is 
better  established  than  this  principle,  that  money  directed  to  be  em- 
ployed in  the  purchase  of  land,  and  land  directed  to  be  sold  and  turned 
into  money,  are  to  be  considered  as  that  species  of  property  into  which 
they  are  directed  to  be  converted ;  and  this  in  whatever  manner  the 
direction  is  given,  whether  by  will,  by  way  of  contract,  marriage  articles, 
settlement  or  otherwise,  and  whether  the  money  is  actually  deposited  or 
only  covenanted  to  be  paid,  whether  the  land  is  actually  conveyed  or 
only  agreed  to  be  conveyed.  The  owner  of  the  fund  or  the  contracting 
parties  may  make  land  money,  or  money  land."  And  if  land  is  clearly 
directed  to  be  sold,  the  circumstance  that  the  consent  of  some  person  or 
persons  is  required  to  the  sale  will  not  prevent  the  immediate  conversion 
of  the  land  into  money  in  the  contemplation  of  equity,  although  such  a 
circumstance  may  often  cause  a  long  postponement  of  the  period  of  its 
actual  conversion. (s)  Notwithstanding  a  trust  for  the  sale  of  land,  if  all 
the  parties  interested  should  be  of  full  age,(^)  and  if  females  unmar- 
ried,(M)  they  may  elect  that  the  land  shall  not  be  sold :  and  after  such 
election  the  land  will  be  considered  as  real  estate  in  equity  as  well  as  at 
law.(a;)  And  the  election  of  the  parties  need  not  be  expressed  r*2881 
in  so  many  *words,  but  may  be  inferred  from  any  acts  by  which 
their  intention  is  clearly  shown. ^(?/) 

(r)   In  Fletcher  v.    Ashburner,  1  Bro.  C.  C.  499,  approved  by  Lord  Alvanley  in  Wliel- 
dale  V.  Partridge,  5  Ves.  396,  397.     See  also  Griffith  v.  Ricketts,  7  Hare  299. 
(s)  See  Lechmere  i'.  Earl  of  Carlisle,  3  P.  Wms.  218,  219. 

(t)  Van  V.  Barnett,  19  Ves.  102.  (m)  Oldham  v.  Hughes,  2  Atk.  452. 

[x)  Davies  v.  Ashford,  15  Sim.  42. 
{y)  Lingen  v.  Sowray,  1  P.  Wms.  172  ;  Cookson  v.  Reay,  5  Beav.22  ;  12  CI.  &  Fin.  121. 

dies,  it  will   go   to   his  real  or  personal  estate,  under  an   order  of  court :   Davis's 

representatives,  as    money  or    land,   ac-  Ap.,  60  Penn.  St.  118. 

cording  as  he  himself  would  have  taken  Conversion  in   short,   is  a  question   of 

it;  but  this  rule  of  considering  money  as  intention;   and   to   effect   it   by  will,    the 

land,  or  land  as  money,  will  not  apply  if  direction  to  convert  must  be  positive  and 

the  special  purpose  for  which  the  conver-  explicit:  Chew  v.  Nicklin,  45  Penn.  St.  84; 

sion   is   to  be    made   fail ;    7ieither   does   it  Edward's    Ap.,    48    Id.    144.      Where    by 

apply,  if  the  effect  would  operate  an  escheat."  equitable  conversion  money  is  considered 

Real   estate  belonging  to  an  infant,  sold  as  land,  it   cannot  in   any  case  retain   its 

under  a   direction  of   the    Court  for   the  inheritable  quality  as   real  estate,  further 

purpose  of    distribution,  is   not    thereby  than  the  first  descent:   Dyer  r.  Cornell,  4 

converted     into     personalty:      Jones     v.  Id.  361,  and   the   converse    of  this  is  also 

Edwards,     8   Jones    L.    336;    Oberley    v.  the  law. 

Lerch,  3  Green  346;  Nelson  w.  Hagerstown,  i  In  all  cases  where  there  would   be   an 

27Md.ol.  See  State  r.  Hirons,  iHoust.  252.  equitable  conversion  of  land  into  money. 

And   so   of   personalty    invested     in    real  or  money  into  land,  the  person  for  whose 


288 


OF   PERSONAL   ESTATE   GENERALLY. 


All  properly  drawn  settlements  of  personal  estate  formerly  contained 
a  power  for  the  trustees  or  trustee  for  the  time  heing,  acting  in  the  exe- 
cution of  the  trusts,  to  give  receipts  for  any  money  payable  to  them  or 
him  under  the  trusts,  which  receipts,  it  was  declared,  should  eflfectually 
discharge  the  persons  paying  the  money  from  all  responsibility  as  to  its 
application.  The  necessity  of  this  provision  arose  from  a  rule  of  equity, 
by  which  any  person  who  paid  money  to  another,  whom  he  knew  to  be 
merely  a  trustee,  was  bound  to  see  the  money  applied  according  to  the 
trusts.(3)  If,  however,  the  trusts  were  of  such  a  kind  as  to  require  time 
and  discretion  to  carry  them  into  effect,  the  receipt  of  the  trustees  would, 
from  the  nature  of  the  case,  have  been  an  effectual  discharge,  without  an 
express  clause  for  this  purpose.(a)^  But  by  a  recent  act  of  parliament 
it  is  provided,  that  the  bonii  fide  payment  to  and  receipt  of  any  person 

(z)  Spalding  v.  Shalmer,  1  Vern.  301  ;  Lloyd  v.  Baldwin,  1  Ves.  sen.  173. 
(a)  Doran  v.  Wiltshire,  3  Swanst   699;  Balfour  v.  Welland,  16  Ves.  151. 


use  the  property  is  given,  may  elect  to  re- 
ceive it  as  money  or  land  according  to  his 
option :  The  Commonwealth  v.  Martin's 
Exrs.,  5  Munf.  121 ;  Burr  v.  Sim  et  al.,  1 
Wheat.  252  ;  Smith  v.  Starr,  3  Id.  65 ;  Rice 
V.  Bixler,  1  W.  &  S.  445  ;  Willing  v.  Peters, 
7  Penn.  St.  287  ;  Tazewell  et  al.  v.  Smith, 
Admr.,  1  Rand.  313  ;  but  in  order  to  make 
this  election,  he  must  be  entitled  to  the 
whole  estate,  or  fund  :  Craig  v.  Leslie,  3 
Wheat.  577;  Rinehart  v.  Harrison's  Exrs., 
1  Baldw.  177;  and  where  there  is  more 
tlian  one  distributee,  they  must  all  agree 
in  determining  the  character  of  the  pro- 
perty, for  the  election  of  one  alone  is  not 
sufficient :  Willing  v.  Peters,  7  Penn.  St. 
286;  Shallenberger  v.  Ashworth,  25  Id. 
152  ;  Evan's  Ap.,  63  Id.  183  ;  Rhinehart  v. 
Harrison's  Exrs.,  1  Baldw.  167,  in  which 
last  case,  it  was  also  decided,  that  election 
can  only  be  made  by  the  person  or  persons 
first  entitled. 

1  Where  trust  property  has  been  sold, 
and  the  purchase-money  is  to  be  rein- 
vested upon  trusts  which  require  time  and 
discretion,  or  the  acts  of  sale  and  rein- 
vestment are  contemplated  to  be  at  a  dis- 
tance from  each  other,  the  purchaser  is 
not  bound  to  look  to  the  application  of 
the  purchase  money :  Wormley  et  al. 
V.  Wormley  et  al.,  8  Wheat.  421;  Lining 


V.  Peters  et  al.,  2  Dessaus.  375;  Hauser  et 
al.  V.  Sh«re  et  al.,  5  Ired.  Eq.  357  ;  nor  is 
he  so  bound,  where,  in  accordance  with  a 
power  for  that  purpose,  lands  are  sold  for 
the  payment  of  debts  generally  :  Hannum 
et  al.  V.  Spear,  2  Dall.  291  ;  s  c.  1  Yeates 
553;  Hauser  et  al.  v.  Shore  et  al.,  5  Ired. 
Eq.  357  ;  Davis  v.  Christian,  15  Graft.  11  ; 
Goodrich  v.  Proctor,  1  Gray  567  ;  Stall  v. 
Cincinnati,  16  Ohio  St.  169;  though  it  is 
otherwise,  of  debts  scheduled  or  specified  : 
Grant  v.  Hook,  13  S.  &  R.  262  ;  and  so 
where  trust  property  has  been  sold  for  the 
purpose  of  distribution  among  the  owners, 
the  purchaser  has  been  held  not  liable  for 
the  misapplication  of  the  proceeds :  Hunt  et 
al.  V.  The  State  Bank  et  al.,  2  Dev.  Eq.  60. 
The  proper  mode  of  discovering  whether 
the  purchaser  of  property  held  in  trust,  is 
to  look  to  the  application  of  the  purchase- 
money,  is,  to  ascertain  whether  the  trust  is 
for  general,  or  specific  purposes  ;  if  the 
former,  the  purchaser  is  not  bound  ;  thus^ 
in  Grant  v.  Hook,  13  S.  &  R.  262,  Judge 
Duncan  says,  "  Where  the  trust  is  for  the 
payment  of  debts  generally,  the  purchaser 
is  not  bound  to  see  to  the  application  of 
the  purchase-money,  although  he  has 
notice  of  the  debts.  For  a  purchaser  can- 
not be  expected  to  see  to  the  observance 
of  a   trust   so   unlimited   and   undefined. 


or  SETTLEMENTS  OF  PERSONAL  PROPERTY.  288 

to  "whom  ^nj  purchase  or  mortgage  money  %)\q\\  be  payable  upon  any 
express  or  implied  trust  shall  effectually  discharge  the  person  paying  the 
same  from  seeing  to  the  application  or  being  answerable  for  the  misap- 
plication thereof,  unless  the  contrary  shall  be  expressly  declared  by  the 
instrument  creating  the  trust  or  security.(6)  It  is  the  better  opinion 
that  this  enactment  is  not  retrospective ;  for  it  can  scarcely  be  supposed 
that  the  legislature  contemplated  the  existence  of  a  prescience  of  this  act 
in  the  authors  of  old  settlements,  inducing  them  to  insert  therein  an  ex- 
press declaration  that  the  act  should  not  apply.  And  with  respect  to 
instruments  executed  and  wills  or  codicils  confirmed  or  *revived  r^.oQq-i 
by  codicil  executed  after  the  28th  August,  1860,  it  is  now  pro-  • 
vided  that  the  receipts  in  writing  of  any  trustees  or  trustee  for  any 
money  payable  to  them  or  him,  by  reason  or  in  the  exercise  of  any  trusts 
or  powers  reposed  or  vested  in  them  or  him,  shall  be  sufficient  discharges 
for  the  money  therein  expressed  to  be  received,  and  shall  effectually 
exonerate  the  person  paying  such  money  from  seeing  to  the  application 
thereof,  or  from  being  answerable  for  any  loss  or  misapplication  thereof,  (c) 

Every  settlement,  the  trusts  of  which  were  likely  to  be  of  long  dura- 
tion, formerly  contained  a  power  of  appointing  new  trustees  in  the  event 
of  any  trustee  dying,  going  to  reside  beyond  the  seas,  desiring  to  be  dis- 
charged, refusing,  or  becoming  incapable  to  act  in  the  execution  of  the 
trusts.  (fZ)^     And  as  the  mere  appointment  of  a  trustee  was  not  sufficient 

{b)  Stat.  22  &  23  Vict.  c.  35,  s.  23.  (c)  Stat.  23  &  24  Vict.  c.  145,  s.  29, 

(^d)  See  Ai^pendix  B. 

But,  if  the  trust  be  of  such  a  nature,  that  from  a  trustee  with  a  power  to  sell,  must 
the  purchaser  can  reasonably  be  expected  see  to  the  application  of  the  purchase- 
to  see  to  the  application  of  the  purchase-  money:  Rutledge  v.  Smith,  1  Busbee  Eq. 
money,  as  if  it  be  for  the  payment  of  lega-  283. 

cies,  which  are  scheduled  or  specified,  he  See  also,  NichoUs  w.  Peak,  1  Beasley  69  ; 

is  bound  to  see  that  the  money  is  applied  Cftrdwell  v.  Cheatham,  2   Head  14  ;  Penn 

accordingly."     See  also,  Dalzell  v.  Craw-  Life  Ins.  Co.  v.  Austin,  42   Penn.  St.  267; 

ford,  2  Pa.  L.  Jour.  23  ;  s.  c,  1  Pars.  Eq.  and  Hill  on  Trustees,  4th  Am.  ed.,  p.  342, 

Cas.  37  ;  Cadbury  v.   Duval,  10  Penn.  St.  note  2. 

267 ;  St.  Mary's  Ch.  v.  Stockton,  4  Halst.  ^  For  the  American  Statute  Law  on  the 

Oh.   520.     "  In  all  cases  .  .  .  where   the  subject  of  the  appointment  of  trustees,  by 

objects  are  not  so  defined  as  to  be  brought  the   courts,  in  the  place  of  others   dying, 

at  once  to  the  view  of  the  purchaser,  it  is  resigning,  &c.,  see  N.  H.  Compiled  Stats, 

settled  that  he  is  not  affected  by  them,  (1867),  p.  380,  sec.  5;  3  Rev.  Stats,  of  N. 

and  has  only  to  pay  the  purchase-money :"  Y.  (5th  ed.),  p.  22,  ^  90;  Matthew's  Dig.  of 

Garrett  v.  Macon  et  al.,  2  Brockenb,  234.  the  Laws  of  Va.  (1857),  vol.  1,  pp.  263-4; 

In  North  Carolina,  however,  it  seems  to  Rev.   Stats,   of  Vt.   (1839),  300;    Vol.  ii. 

be  an  open  question,  whether  a  purchaser  Compiled  Laws  of  Michigan  (1857),  p.  828, 


289  OP    PERSONAL   ESTATE    GENERALLY. 

to  vest  the  trust  property  in  him,  it  was  usual  and  proper  to  direct  that, 
on  every  such  appointment,  the  trust  property  should  be  so  conveyed, 
assigned,  transferred  or  paid  as  eft'ectually  to  vest  the  same  in  the  new 
trustee  jointly  with  the  surviving  or  continuing  trustees,  or  solely,  as  the 
case  might  require.  Every  new  trustee  was  also  invested  with  the  same 
powers  as  the  original  trustees.  But  the  act  to  which  we  have  already 
referred,(t')  now  provides  that  whenever  any  trustee,  either  original  or 
substituted,  and  whether  appointed  by  the  Court  of  Chancery  or  other- 
wise, shall  die,  or  desire  to  be  discharged  from  or  refuse  or  become  unfit 
or  incapable  to  act  in  the  trusts  or  powers  in  him  reposed,  before  the 
same  shall  have  been  fully  discharged  and  performed,  it  shall  be  lawful 
r*9Qm  *^^^'  ^^'^  person  or  persons  nominated  for  that  purpose  by  the 
deed,  will,  or  other  instrument  creating  the  trust  (if  any),  or  if 
there  be  no  such  person,  or  no  such  person  able  and  willing  to  act,  then 
for  the  surviving  or  continuing  trustees  or  trustee  for  the  time  being,  or 
the  acting  executors  or  executor,  or  administrators  or  administrator  of 
the  last  surviving  and  continuing  trustee,  or  for  the  last  retiring  trustee, 
by  writing,  to  appoint  any  other  person  or  persons  to  be  a  trustee  or 
trustees  in  the  place  of  the  trustee  or  trustees  so  dying  or  desiring  to  be 
discharged,  or  refusing,  or  becoming  unfit  and  incapable  to  act  as  afore- 
said ;  and  so  often  as  any  new  trustee  or  trustees  shall  be  so  appointed  as 
aforesaid,  all  the  trust  property  (if  any)  which  for  the  time  being  shall 
be  vested  in  the  surviving  or  continuing  trustees  or  trustee,  or  in  the 
heirs,  executors  or  administrators  of  any  trustee,  shall,  with  all  con- 
venient speed,  be  conveyed,  assigned  and  transferred  so  that  the  same 
may  be  legally  and  efiectually  vested  in  such  new  trustee  or  trustees, 
either  solely  or  jointly  with  the  surviving  or  continuing  trustees  or  trustee 
as  the  case  may  require,  and  every  new  trustee  or  trustees  to  be  ap- 
pointed as  aforesaid,  as  well  before  as  after  such  conveyance  or  assign- 
ment as  aforesaid,  and  also  every  trustee  appointed  by  the  Court  of 

(e)  Stat.  23  &  24  Vict.  c.  145,  s.  27,  ante,  pp.  279,  280,  285.  This  act  applies  also  to 
trustees  appointed  by  the  Court  of  Chancery  of  the  County  Palantine  of  Lancaster. 
Stat.  28  Vict.  c.  40. 

sec.  27  ;  Maryland  Code  ( 1 860),  p.  579,  sec.  (1786  to  1814),  vol.  v.,  pp.  277,  278  ;  Caru- 

118  ;  Suppl.,  1870,  p.  33,  sub.  sec.  2  ;  Code  ther's  and  Nicholson's  State  Laws  of  Tenn. 

of  Ala.  (1852),  p.  535,  §  3000;  Howards.  693;  Maxwell  v.   Finnic,  6  Cold.  (Tenn.) 

Gilbert,  39  Ala.  726;  Gen.  Stats  of  Mass.  434;  Vol.  ii.  Rev.  Stats,  of  Ohio  (1801),  p 

(1860),  p.  501,  sec.  7;  Shaw  v.  Paine,  2  1630,  sec.  67;  Stats,  of  Minnesota  (1849- 

Allen  293  ;  Rev.  Stats,  of  Maine  (1857),  p.  1858),  p.  384,  sec.  27  ;  Purd.  Dig.  (1861), 

435,  sec.  5  ;  Nix.  Dig.  Laws  of  N.J.  (18G8),  p.  970,  g  23,  and  p.  972,  ^  ^  38-41  ;  p.  975, 

p.  642,  sec.   13  ;  Rev.  Stats,  of  Wisconsin  ^  57  ;  and  Suppl.  1679,  sec.  1. 
(1858),   p.   532,   sec.   27;  Stats,  of  S.  C. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.  290 

Chancery,  either  before  or  after  the  passing  of  the  act,  shall  have  the 
same  powers,  authorities  and  discretions,  and  shall  in  all  respects  act,  as 
if  he  had  been  originally  nominated  a  trustee  by  the  deed,  will,  or  other 
instrument  creating  the  trust.  This  act,  as  we  have  before  observed, 
extends  only  to  instruments  executed,  or  wills  confirmed  or  revived  by 
codicil  executed  after  the  28th  of  August,  1860.  A  mere  power  to  ap- 
point a  new  trustee  does  not  render  such  appointment  imperative ;  and 
in  case  of  the  death  of  any  trustee,  the  survivors  or  survivor  may 
still  carry  on  the  ordinary  business  of  the  trust.(/)  When  a  trustee 
*has  once  accepted  the  office,  he  has  no  right  to  retire,  unless  r*oQi"| 
the  person  having  the  power  to  appoint  another  trustee  in  the 
event  of  his  retiring  should  consent  to  do  so  ;{g)  or  unless,  from  unfore- 
seen circumstances,  the  duties  of  the  trust  should  have  become  more 
onerous  than  was  contemplated  by  the  trustee  when  he  accepted  the 
office. (A)  When  several  deeds  are  required  for  the  appointment  of  a  new 
trustee,  it  is  now  sufficient  if  one  of  the  deeds  be  stamped  with  a  duty  of 
11.  15s.  and  the  others  with  the  same  duty  as  would  be  payable  on  a 
duplicate  thereof,  (i) 

The  Trustee  Act,  1850,(^)  the  provisions  of  which  have  been  extended 
by  a  more  recent  act,(Z)  empowers  the  Court  of  Chancery  to  appoint  a 
new  trustee  in  all  cases  where  it  is  inexpedient,  difficult  or  impracticable 
so  to  do  without  the  assistance  of  that  court,  and  either  in  substitution 
for,  or  in  addition  to,  any  existing  trustee,(wi)  and  whether  there  be  any 
existing  trustee  or  not.(w)  Provision  is  also  made  for  the  appointment 
of  a  new  trustee  in  lieu  of  any  trustee  who  may  have  been  convicted  of 
felony,(o)  and  for  the  infancy,(j3)  lunacy  or  idiotcy  of  any  trustee  or 
executor,(g)  and  for  his  being  out  of  the  jurisdiction  of  the  court,  or  not 
being  found,  and  for  its  being  uncertain  whether  he  is  living  or  r*9Qo-| 
dead,(r)  and  for  his  neglecting  or  refusing  *to   transfer  any 


(/)  Warburton  v.  Sandys,  14  Sim.  €22. 

(g)  Adams  v.  Paynter,  1  CoU.  532.  (A)  Coventry  v.  Coventry,  1  Keen  758. 

(i)  Stat.  24  &  25  Vict.  c.  91,  s.  30.     See  Principles  of  the  Law  of  Real  Property  136, 
6th  ed.;  139,  7th  ed. ;  145,  8th  ed. 

{k)  Stat.  13  &  14  Vict.  c.  60.     See  Principles  of  the  Law  of  Real  Property  136,  3d. 
and  4th  eds.  ;   148,  5th  ed. ;   155,  6th  ed. ;  158,  Ith  ed.  ;  166,  8th  ed. 

{I)  Stat.  15  &  16  Vict.  c.  55.  (m)  Stat.  13  &  14  Vict.  c.  60,  ss.  32,  35. 

(n)  Stat.  15  &  16  Vict.  c.  55,  s.  9.  (o)  Sect.  8. 

Ip)  Sect.  3. 

{q)  Stat.  13  &  14  Vict.  c.  60,  ss.  5,  6  ;   15  &  16  Vict.  c.  55,  ss.  10,  11. 

(r)  Stat.  13  &  14  Vict.  c.  60,  ss.  22,  25. 
23 


292  '  OF   PERSONAL   ESTATE   GENERALLY. 

stock,  or  to  receive  the  dividends  or  income  thereof,  or  to  sue  for  or  re- 
cover any  chose  in  action. («)* 

The  office  of  trustee  of  a  settlement  is  one  involving  great  responsi- 
bility, and  frequently  much  trouble,  -without  any  renumeration ;  for  a 
trustee  is  not  allowed  to  make  a  profit  of  his  trust.  And  if  he  be  a  soli- 
citor, he  cannot  receive  payment  for  his  professional  trouble  incurred  in 
the  business  of  the  trust,(i)  unless  he  expressly  stipulate  before  accepting 
the  office,  that  he  shall  be  permitted  to  do  so,(w)  or  unless  his  charges  be 
voluntarily  paid  by  the  cestui  que  trust  with  full  knowledge  that  they 
might  have  been  resisted.(a;)  But  a  trustee  may  charge  against  the 
trust  property  all  costs  and  expenses  properly  incurred  in  the  conduct  of 
the  trust.  And,  it  has  been  held,  that  in  the  event  of  a  suit  being 
brought  against  the  trustees,  one  of  the  trustees,  being  a  solicitor,  may 
be  employed  by  his  co-trustees,  and  may  make  the  usual  charges  against 
them,  provided  the  amount  of  the  costs  be  not  thereby  increased. (j/)^ 
And  every  trustee  is  allowed  in  a  suit  his  full  costs,  as  between  solicitor 
and  client.(z)  But  his  right  to  costs  may  be  forfeited  by  his  negligence 
and  misconduct ;(«)  or  he  may  even  be  made  to  pay  the  costs  of  the  other 
r*0Q<^1  *parties.(5)  As  the  trustee  has  the  legal  title  to  the  property, 
^  -^  he  is  often  enabled,  if  fraudulently  inclined,  to  sell  it  or  spend 
it  for  his  own  benefit.  It  is  therefore  highly  proper  that  his  conduct 
should  be  narrowly  scrutinized,  and  that  he  should  be  invariably  pun- 
ished for  any  breach  of  faith.  But  the  Court  of  Chancery  goes  further 
than  this,  and  punishes,  with  almost  equal  severity,  his  neglect  of  duties, 
which  in  many  cases  he  scarcely  knows  that  he  has  undertaken.  Thus, 
if  a  trustee,  by  his  negligence  or  misplaced  confidence  in  his  co-trustee, 

(s)   Stat.  13  &  14  Vict.  c.  60,  ss.  23,  24,  25  ;  stat.  15  &  16  Vict.  c.  55.  ss.  4,  5. 

(i)  Moore  f.  Frowd,  3  Myl.  &  Cr.  45  ;  Fraser  v.  Palmer,  4  Yon.  &  Col.  515  ;  Collins  v. 
Carey,  2  Bear.  128  ;  Bainbrigge  v.  Blair,  8  Beav.  588  ;  Todd  v.  Wilson,  9  Beav.  486.  See 
Ex  parte  Newton,  3  De  G.  &  Sm.  584. 

(w)  Re  Sherwood,  3  Beav.  388. 

(x)  Stanes  v.  Parker,  9  Bear.  385.     See  Gomley  t;.  Wood,  3  Jones  &  Lat.  678. 

(y)  Cradock  v.  Piper,  1  Macn.  &  G.  664  ;  Clack  v.  Carlon,  V.-C.  W.,  7  Jur.  N.  S. 
441.  See,  however,  Lincoln  v.  Windsor,  9  Hare  158  ;  Lyon  v.  Baker,  5  De  G.  &  Sm. 
622  ;  Broughton,  L.  C,  1  Jur.  N.  S.  965  ;  5  De  G.,  M.  &  G.  160. 

(z)  2  Fonb.  Eq.  176. 

(a)  Campbell't).  Campbell,  2  Myl.  &  Cr.  25  ;  Howard  v.  Rhodes,  1  Keen  581. 

(i)  Wilson  V.  Wilson,  2  Keen  249  ;  Willis  v.  Hiscok,  4  Myl.  &  Cr.  197  ;  Firmin  v. 
Pulham,  2  De  G.  &  Sm.  99. 


1  See  ante,  p.  289,  note.  able  note,  the  whole  subject  of  the  com- 

»  See  the  case   of  Robinson  v.  Pett,   2     pensation  of  trustees  is  considered. 
Leading  Cases  in  Equity  206,  where  in  an 


OF   SETTLEMENTS   OF   PERSONAL   PROPERTY. 


293 


gives  him  an  opportunity  to  commit  a  breach  of  trust,  of  "which  opportu- 
nity the  co-trustee  avails  himself,  the  innocent  trustee  will  be  made  to 
replace  the  whole  of  the  fund  abstracted  by  the  other. (c)  So  if  the  trus- 
tee should  depart  from  the  letter  of  his  trust,  as  by  investing  the  trust 
fund  on  an  unauthorized  security,  although  at  the  importunity  of  some 
of  the  parties  interested,  and  with  a  bona  fide  desire  to  benefit  them  all, 
he  will  be  answerable  for  any  loss  which  such  departure  may  have  occa- 
sioned.((^)  And  if,  being  ignorant  of  law,  he  should  give  himself  up 
entirely  to  his  professional  adviser,  he  may  still  sufier  from  the  mistake 
of  his  solicitor  or  conveyancer  ;{e)  and  in  such  a  case  he  will  scarcely 
perhaps  see  the  justice  of  the  remark  that  he  might  (had  he  known  how) 
have  chosen  a  wiser  ^soljcitor,  or  a  more  learned  counsel. (/)^  r*9Q4T 
In  all  ordinary  settlements,  clauses  used  to  be  inserted  for  the 

(c)  Lord  Shipbrook  y.  Lord  Hinchinbrook,  11  Ves.  252;  Brice  v.  Stokes,  11  Ves. 
319  :  Hanbury  v.  Kirkland,  3  Sim.  265  ;  Booth  v.  Booth,  1  Beav.  125  ;  Broadhurst  v. 
Balguy,  1  You.  &  CoL  N.  C.  16  ;  Styles  v.  Guy,  1  Macn.  &  G.  422  ;  Dix  v.  Burford,  19 
Beav.  409. 

(d)  Driver  v.  Scott,  4  Russ.  195  ;  Pride  v.  Fooks,  2  Bear.  430  ;  Forrest  v.  Elwes,  4 
Ves.  497  ;  Watts  v.  Girdlestone,  6  Beav.  188. 

{e)  Willis  V.  Hiscox,  4  Myl.  &  Cr.  197  ;  Angier  v.  Stannard,  3  MyL  &  K.  566  ;  Hamp- 
shire V.  Bradley,  2  Coll.  34  ;  Boulton  v.  Beard,  3  De  G.,  M.  &  G.  608  ;  see,  however, 
Poole  V.  Pass,  1  Beav.  600 ;  Holford  v.  Phipps,  3  Beav.  434,  4  Beav.  475. 

(/)  3  Myl.  &  K.  572. 

1  Where  trustees  act  bond  fide,  and  with 
due  diligence,  they  have  always  received 
the  favor  and  protection  of  courts  of 
equity,  and  their  acts  are  regarded  with 
the  most  indulgent  consideration  ;  but, 
where  they  have  betrayed  their  trust, 
grossly  violated  their  duty,  or  been  guilty 
of  unreasonable  negligence,  their  acts  are 
inspected  with  the  severest  scrutiny,  and 
they  are  dealt  with  according  to  the  rules 
of  strict  justice  :  Diffenderffer  v.  Winder, 
3  Gill  &  Johns.  312  ;  Gilbert  v.  Sutliff,  3 
Ohio  129  ;  EUig  v.  Naglee,  9  Cal.  683  ; 
Smith  V.  Vertrees,  2  Bush  (Ky.)  63. 
A  trustee  may,  in  the  discharge  of  his 
duty,  consult  the  opinion  of  counsel,  and 
if  it  has  been  reasonably  and  properly 
done,  he  will  be  entitled  to  an  allowance 
for  the  expense  incurred,  out  of  the  trust 
estate :  Jones  v.  Stockett,  2  Bland.  Ch. 
409  ;  Green  v.  Mumford,  4  R.  L  313  ;  but 
the  advice  so  given,  will  not  protect  the 
trustee  from  the  consequences  of  a  failure 
to  discharge  his  duty  properly,  for  if  he 


has  doubts,  or  there  was  room  for  them, 
he  should  apply  to  a  court  of  equity, 
which  will  always  give  him  directions 
upon  which  he  may  rely  with  entire  con- 
fidence :  Freeman  et  al.  v.  Cook  et  al.,  6 
Ired.  Eq.  373;  Weber  v.  Samuel,  7  Barr 
510 ;  Hayden's  Exrs.  v,  Marmaduke,  19 
Mo.  403  ;  Ihmsen's  Ap.,  43  Penn.  St.  431. 
But  see  Neff's  Ap.,  57  Id.  91. 

In  the  case  of  Rogers  et  al.,  Exrs.,  v. 
Benson  et  al.,  5  Johns.  Ch.  540,  where  a 
trustee,  in  his  character  of  counsel,  gave 
an  opinion  in  writing  concerning  the  title 
to  certain  lands  not  included  in  the  trust, 
but  the  opinion  was  so  loosely  drawn  as 
to  apply  to  the  trust  estate,  and  the  per- 
son to  whom  the  opinion  was  given  made 
sale  of  the  trust  property,  it  was  held  that 
the  trustee  should  not  be  liable  for  the 
act  of  the  person  to  whom  he  had  given 
the  opinion,  there  having  been  no  fraud 
on  his  part. 

But  a  trustee,  who,  after  accepting  the 
trust,  voluntarily  permits  his  co-trustee 


294  OF   PERSONAL   ESTATE   GENERALLY. 

indemnity  and  reimbursement  of  trustees,  to  the  effect  that  they  should 
not  be  answerable  the  one  for  the  other  of  them,  or  for  signing  receipts 
for  the  sake  of  conformity,  or  for  involuntary  loss ;  and  that  they  might 
reimburse  themselves  out  of  the  trust  funds  all  costs  and  expenses  in- 
curred in  relation  to  the  trust.  But  these  clauses,  though  often  very 
highly  valued  by  trustees,  really  afforded  them  little,  if  any,  further 
protection  than  they  would  have  been  entitled  to,  if  left  to  the  ordinary 
rules  of  equity.(^)  It  has,  however,  been  recently  enacted  that  every 
deed,  will  or  other  instrument  creating  a  trust,  either  expressly  or  by 
implication,  shall  be  deemed  to  contain  these  clauses.(/i)  It  would  have 
been  more  direct,  and  therefore  more  philosophical,  to  alter  the  rules  of 
equity  with  respect  to  trustees,  if  alteration  were  required,  rather  than 
to  enact  that  a  deed  shall  be  deemed  to  contain  clauses  which  in  fact  are 
not  there. 

In  order  to  provide  means  for  securing  trust  funds,  and  for  relieving 
trustees  from  the  responsibility  of  administering  them,  an  act  of  parlia- 
ment has  been  passed,(2)  whereby  all  trustees,  executors,  administrators 
or  other  persons  having  in  their  hands(^)  any  moneys  belonging  to  any 
trust  whatsoever,  or  the  major  part  of  them,(?)  may  pay  the  same,  with 
the  privity  of  the  accountant-general  of  the  Court  of  Chancery,  into  the 
Bank  of  England,  to  the  account  of  such  accountant-general  in  the  mat- 
r*9Q''"l  *^^  ^^  ^^®  trust,  in  trust  to  attend  the  *orders  of  the  court. 
Bank  annuities,  East  India  and  South  Sea  stock,  and  govern- 
ment and  parliamentary  securities,  held  upon  trust,  may  also  be  trans- 
ferred or  deposited  in  like  manner.  The  trust  is  then  administered  by 
the  court  upon  petition  in  a  summary  way,  without  a  bill,  unless  the 
court  direct  any  suit  to  be  instituted. (m)^     Where  the  fund  does  not  ex- 

(^r)  Fcnwick  v.  Greewell,  10  Beav.  412  ;  Brumridge  v.  Brumridge,  27  Beav.  5. 
{h)  Stat.  22  &  23  Vict.  c.  35,  s.  31.  (»)  Stat.  10  &  11  Vict.  c.  96,  s.  1. 

{k)  Buckley's  Trust,  17  Beav.  110.  {I)  See  stat.  12  &  13  Vict.  c.  74. 

(m)  Stat.  10  &  11  Vict.  c.  96,  s.  2. 

to  take  the  entire  management  of  it,  and  where  the   investigation  may  involve  in- 

the   possession  and  control   of  the   trust  quiries,    calculated    by    protracting    the 

property,  is,  equally,  with  him,  liable  to  cause,  to  delay  parties  not  interested  in 

account :  Royall    v.    McKenzie,    25    Ala.  such   new  inquiries,  the  proceeding  must 

363;  Wayman  ?'.  Jones,  4  Md.  Ch.  Decs,  be    by   bill.     A    petition    is    the    proper 

500  ;  McMurray  v.   Montgomery,  2    Swan  course,  when  no   other  persons  are  to  be 

374  ;  Schenck  v.  Schenck,  1  Green  174.  made  parties  to  litigate  the  questions  pre- 

1  Proceedings    in    courts    of  equity  are  sented  by  it,  than  such  as  are,  or  ought  to 

originated    by  bill   or    by  petition.      But  have  been,   parties   to   the    original  bill : 

where  new  parties  are   to  be   brought  in,  Hayes  v.  Miles  et  al.,  9  Gill  &  Johns.  193; 

not    necessary   to    the    original    bill,   or  Dyckman   et   al.  v.   Kernochan   et  al.,  2 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY. 


295 


ceed  in  amount  or  value  the  sum  of  five  hundred  pounds,  jurisdiction  is 
now  given  to  the  county  courts  ;  the  fund,  if  money,  being  paid  into  a 
post-office  savings  bank  established  in  the  town  in  which  the  county  court 
is  held,  in  the  name  of  the  registrar  of  the  court,  in  trust  to  attend  the 
orders  of  the  court.  And  stocks  or  securities  may  be  transferred  into 
or  deposited  in  the  names  of  the  treasurer  and  registrars  of  the  court 
upon  the  like  trust. (ii)  Where  there  is  not  a  treasurer,  a  person  shall 
be  nominated,  by  rule  of  practice,  to  whom  the  transfer  or  deposit,  in 
conjunction  with  the  registrar,  may  be  made.(o) 

A  salutary  act  has  recently  been  passed  for  the  punishment  of  fraudulent 
trustees,  bankers,  directors,  and  public  officers. (^:>)  More  recent  acts  em- 
power any  trustee,  executor  or  administrator,  by  petition  or  statement 
to  be  signed  by  counsel,  to  apply  to  any  judge  of  the  Court  of  Chancery, 
for  his  opinion,  advice  or  direction  on  any  question  respecting  the  man- 
agement or  administration  of  the  trust  property. (^) 

In  some  marriage  settlements,  in  addition  to  the  settlement  actually 

(n)  Stat.  30  &  31  Vict.  c.  142,  ss.  24,  25.  (o)  Sect.  24. 

Ip)  Stat.  20  &  21  Vict.  c.  54. 

(g)  Stat.  22  &  23  Vict.  c.  35,  s.  30  ;  23  &  24  Vict.  c.  38,  s.  9. 


Paige  Ch.  26 ;  Duval  v.  The  Farmers' 
Bank  of  Maryland,  4  Gill  &  Johns.  292  ; 
Maccubbin  v.  Cromwell,  2  Har.  &  G.  443  ; 
Griggs  V.  Detroit,  &c.,  Co.,  10  Mich.  117. 
Thus,  it  is  the  proper  course  to  pursue, 
for  joining  a  party  who  ought  to  have 
been  joined  in  the  original  proceedings  : 
Williams  v.  Hall,  &c.,  1  B.  Mon.  295  ;  but 
where  a  person  is  a  necessary  party,  in 
consequence  of  an  act  performed  by  him- 
self after  the  commencement  of  the  suit, 
the  proper  proceeding  to  bring  him  into 
court  is  an  original  bill  in  the  nature  of  a 
supplemental  bill :  Winter  v.  Ludlow  (Ct. 
Court  U.  S.  for  the  East.  Dist.  of  Pa.),  3 
Phila.  464.  A  lunatic  who  wishes  to 
traverse  his  inquisition  of  lunacy,  may 
apply  by  petition  :  In  the  matter  of  Chris- 
tie, 5  Paige  Ch.  242  ;  and  it  is  the  proper 
course  also  for  a  lunatic  to  take  who 
wishes  to  compel  his  guardian  to  account: 
Tally  V.  Tally,  2  Dev.  &  Bat.  Eq.  385 ;  and 
so  of  an  application  for  a  rehearing, 
whether  it  be  by  supplemental  bill,  or  bill 
of  review  :  Hunt  v.  Smith   et  al.,  3  Rich. 


Eq.  466;  Huison,  Admr.,  v.  Pickett,  2 
Hill  Ch.  353;  Wiser  v.  Blackly  et  al.,  2 
Johns.  Ch.  488 ;  Livingston  v.  Hubbs  et 
al.,  3  Id.  124;  Haskell  et  al.  v.  Raval,  1 
McCord's  Ch.  28  Colomb  et  al.  v.  The 
Br.  Bank  at  Mobile,  18  Ala.  454  ;  Em- 
erson V.  Davies  et  al.,  1  Wood.  &  M. 
21;  Jenkins  v.  Eldredge,  3  Story  299; 
Baker  v.  Whiting  et  al.,  1  Id.  218; 
Green's  Ap.,  59  Penn.  St.  235  ;  Elliott  v. 
Balcom,  11  Gray  286.  Application  for 
maintenance  may  also  be  made  by  petition  : 
In  the  matter  of  Bostwick,  4  Johns.  Ch. 
102. 

In  South  Carolina,  by  statute,  any 
equitable  claim,  under  the  value  of  lOOL, 
may  be  brought  to  the  notice  of  the  court 
by  petition  :  Skilling  v.  Jackson,  1  Hill 
Ch.  185. 

In  Pennsylvania,  the  proceedings  in  the 
matter  of  the  accounts  of  trustees,  and 
others  acting  in  a  fiduciary  capacity,  are 
usually  commenced  by  filing  the  accounts, 
or  by  petition, — a  bill  to  account,  is  as- 
sumed as  having  been  filed. 


295  OF    PERSONAL    ESTATE    GENERALLY. 

made,  a  covenant  is  inserted  for  the  settlement  of  all  such  property  as  the 
intended  wife  shall  become  entitled  to  during  the  coverture  or  marriage, 
n^^-jqp-.    It  *sometimes  happens  that  at  the  time  when  such  covenant  is 

entered  into,  the  wife  is,  without  being  aware  of  it,  entitled  to 
other  property  besides  that  actually  settled.  In  such  a  case,  the  gen- 
eral rule  is  that  the  property  to  whicli  she  is  then  entitled,  is  subject  to 
the  covenant,  and  ought  to  be  settled,  as  well  as  that  which  she  may  sub- 
sequently acquire.(?')  But  as  the  question  is  entirely  one  of  intention,  if 
the  property  to  which  the  wife  is  entitled  appear  to  have  been  purposely 
omitted,  it  will  not  be  bound  by  such  a  covenant. («)  If  the  covenant  to 
settle  the  wife's  future  property  be  entered  into  by  the  intended  husband 
alone,  the  wife  will  not  be  bound  to  settle  any  future  property  to  which 
she  may  become  entitled  for  her  separate  use.(^)  Occasionally  covenants 
are  unadvisedly  entered  into  by  the  intended  husband  to  settle  on  his 
children,  or  to  leave  to  them  by  his  will,  all  the  property  that  he  may 
acquire  during  the  coverture,  or  all  his  property  generally. (u)  So  a 
father  may  covenant,  on  the  marriage  of  his  daughter,  to  leave  her  as 
great  a  share  in  his  property  as  to  any  of  his  other  children. (v)  These 
covenants  will  be  enforced  in  equity ;  but  from  their  vague  and  uncer- 
r*9q7-i    t^i^  character,  they  are  *likely  to  lead  to  much  litigation.     A 

covenant  to  settle  property  of  a  given  value,  when  no  time  is 
limited  for  its  performance,  creates  no  lien  on  any  of  the  property  of 
the  covenantor. (?6>)  And  it  appears  to  be  now  settled,  contrary  to  what 
was  before  supposed  to  be  the  law,  that  no  lien  is  created  whether  a  time 
for  the  performance  of  the  covenant  be  specified  or  not.(a;) 

(r)  Grafiftey  v.  Humpage,  1  Beav.  46 ;  James  v.  Durant,  21  Beav.  177  ;  Blythe  v.  Gran- 
ville, 13  Sim.  190;  Ex  parte  Blake,  16  Beav.  463;  Re  Mackenzie's  Settlement,  Law  Rep. 
2  Ch.  Ap.  345. 

(s)  Hoare  v.  Hornby,  2  You.  &  Col.  N.  C.  121  ;  Otter  v.  Melvill,  2  De  G.  &  Sm.  257  ; 
Wilton  V.  Colvin,  3  Drew.  617  ;  Archer  y.  Kelly,  1  Drew.  &  S.  300. 

(<)  Douglas  V.  Congreve,  1  Keen  410,  423  ;  Travers  v.  Travers,  2  Beav.  179  ;  Drury  v. 
Scott,  4  You.  &  CoL  264;  Ramsden  v.  Smith,  2  Drew.  298  ;  Hammond  v.  Hammond,  19 
Beav.  29.  See  also  Butcher  v.  Butcher,  14  Beav.  222;  Cramer  v.  Moore,  3  Sm.  &  G. 
141 ;  Grey  v.  Stuart,  2  GifF.  398  ;  Brooks  v.  Keith,  1  Drew.  &  S.  462  ;  Coventry  v.  Cov- 
entry, 32  Beav,  612  ;  Re  Mainwaring's  Settlement,  Law  Rep.  2  Eq.  487. 

(w)  Lewis  V.  Madocks,  17  Ves.  48  ;  Needham  v.  Smith,  4  Russ.  318;  Needham  v. 
Kirkman,  4  B.  &  Aid.  531  (E.  C.  C.  L.  R.  vol.  6)  ;  Hardey  v.  Green,  12  Beav.  182. 

{v)  Willis  V.  Black,  4  Russ.  170  ;  Clegg  v.  Clegg,  2  Russ.  &  My.  570  ;  Eardley  v.  Owen, 
10  Beav.  572  ;  Jones  v.  How,  7  Hare  267  ;  9  C.  B.  1  (E.  C.  L.  R.  vol.  67).  See  Phelp 
V.  Amcotts,  V.-C.  J.,  17  W.  R.  703. 

(w)  Freemoult  v.  Dedire,  1  P.  Wms.  429  ;  Berrington  v.  Evans,  3  You.  &  Col.  384. 

(z)  Mornington  v.  Kcanc,  2  De  G.  &  J.  292,  explaining  Roundell  v.  Brearey,  2  Vern. 
482,  and  questioning  Wellesley  v.  Wellesley,  4  Myl.  &  Cr.  561,  581. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY. 


297 


Marriage  as  we  have  seen,{t/)  is  a  valuable  consideration.^     Every 
settlement,  therefore,  made  by  parties  of  full  age,  previously  to  and  -in 

(y)  Ante,  p.  74. 

1  Not  only  is  marriage  regarded  as  a  valu- 
able consideration  :  Magniac  v.  Thompson, 
1  Baldw.  344,  affirmed  7  Peters  348  ;  Car- 
roll V.  Lee,  Admr.  3  Gill  &  Johns.  504; 
Bray  v.  Dugeon,  6  Munf.  132  ;  Smith  v. 
Smith's  Admr.,  Id.  581  ;  Hutcher  v.  Robert- 
son, Exr.,  4  Strobh.  Eq.  179  ;  De  Barante  v. 
Gott  et  al.,  6  Barb.  492  ;  Dunn  v.  Thorp, 
Admr.  &c.,  4  Ired.  Eq.  7  ;  Freeman  et  al.  v. 
Hill,  Exr.  et  al.,  1  Dev.  &  Bat.  389  ;  Tren- 
ton Banking  Co.  v.  Woodruff  et  al  ,  1 
Green  Ch.  117;  Armfield  v.  Arrafield,  1 
Freeman  Ch.  311 ;  Cummings  v.  Boston,  25 
Geo.  277;  Cloud  v.  Dupree,  28  Id.  170; 
Albert  v.  Winn,  5  Md.  66  ;  Frank's  Ap.,  59 
Penn.  St.  190;  but  it  is  looked  upon  as 
the  highest  of  considerations :  Tunno  et 
al.  V.  Trezevant  et  al.,  2  Desauss.  267  ;  and 
equity  will  uphold  an  agreement  made  in 
consideration  of  marriage,  in  cases  where 
by  law,  no  remedy  could  be  sought;  as, 
where  one  in  contemplation  of  marriage, 
gave  a  bond  to  his  intended  wife,  that  he 
would  allow  her  to  hold  all  her  personal 
property  to  her  sole  and  separate  use ; 
though,  by  the  marriage,  such  bond  was, 
as  a  legal  instrument,  extinguished,  yet 
the  agreement  was  upheld,  in  accordance 
with  the  intention  of  the  parties  :  Baldwin 
V.  Carter,  17  Conn.  201  ;  Smith  v.  Chapell, 
31  Id.  589  ;  but  a  verbal  agreement,  though 
founded  upon  marriage,  will  not  be  valid  : 
Andrews  &  Bro.  v.  Jones  et  al.,  10  Ala. 
400  ;  Montgomery  v.  Henderson,  3  Jones 
Eq.  113;  unless  falling  within  the  princi- 
ple of  the  statute  of  frauds  :  Neale  v. 
Neales,  9  Wall.  U.  S.  1  ;  nor  will  an  agree- 
ment in  consideration  of  marriage  be  sup- 
ported, unless  the  circumstances  of  the 
parties  are  such  as  to  warrant  the  making 
of  a  marriage  settlement ;  thus  in  the  case 
of  Keith  V.  Woombwell,  8  Pick.  213,  which 
was  an  agreement  made  between  two  very 
poor  persons  in  anticipation  of  marriage, 
C.  J.  Parker  says,  "  That  two  very  poor 
people,  depending  upon  their  labor  for 
their  living,  should,  upon  a  contemplated 


marriage  enter  into  an  agreement,  the 
effect  of  which  would  be  that  the  labor 
of  one  should  go  to  the  support  of  both, 
and  that  the  labor  of  the  other  should  be 
to  the  profit  of  that  one  only,  would  be  a 
very  unequal  bargain,  and  hardly  sustain- 
able in  a  court  of  equity.  It  would  be 
without  consideration,  and  as  respects 
future  creditors  even,  would  be  fraudulent, 
for  the  visible  means  of  the  husband  in 
such  case,  upon  which  he  would  gain  his 
daily  credit,  would  be  continually  dimin- 
ished, by  a  secret,  invisible  consumption, 
which  would  keep  him  down,  and  render 
him  wholly  unable  to  pay  his  debts." 
And  see,  Quidort  v.  Pergeaux,  3  Green 
472. 

Where,  however,  the  contract  of  mar- 
riage is  valid,  it  is  interpreted  like  an 
ordinary  contract  of  sale;  if  the  contract 
is  executed,  the  wife  is  regarded  as  a  pur- 
chaser, and  if  executory,  as  a  creditor  : 
Magniac  v.  Thompson,  1  Bald.  344,  affirmed, 
7  Peters  348 ;  Armfield  v.  Armfield,  1 
Freem.  Ch.  311  ;  but  courts  of  law  will 
not  estimate  the  value  of  the  marriage,  in 
comparison  with  the  settlement,  though 
equity  may  do  it :  Magniac  v.  Thompson,  1 
Baldw.  344,  affirmed,  7  Peters  348  ;  so,  a 
contract  based  upon  the  consideration  of 
marriage,  will  be  valid,  even  though  the 
husband  was  indebted  at  the  time :  Magniac 
V.  Thompson,  1  Baldw.  344  ;  Fones  v.  Rice, 
et  al.,  9  Gratt.  568  ;  Rivers  v.  Thayer,  7 
Rich.  Eq.  136 ;  Tisdale  v.  Jones,  38  Barb. 
523  ;  Jones's  Ap.,  62  Penn.  St.  324  ;  just 
as  one  may  sell  his  property  for  a  good 
consideration,  even  though  indebted : 
Wheaton  v.  Sexton's  Lessee,  4  Wheat.  503  ; 
but,  of  course,  existing  liens  will  not  be 
defeated  by  such  sale  or  settlement :  Arm- 
field  V.  Armfield,  1  Freem.  Ch.  311; 
Byrod's  Ap.,  31  Penn.  St.  241  ;  and  to 
make  the  contract  void  for  fraud  against 
creditors,  both  parties  must  concur  in 
the  fraud  :  Magniac  v.  Thompson,  1  Baldw. 
344;  Andrews  &  Bros.  v.  Jones   et  al.,  10 


297 


OF   PERSONAL   ESTATE   GENERALLY. 


consideration  of  marriage,  or  made  subsequently  to  marriage  in  pursu- 
ance of  written  articles,(2)  stands  on  the  footing  of  a  purchase,  and  has 

(z)  Stat.  29  Car.  II.  c.  3,  s.  4.     See  ante,  p.  78. 


Ala.  400  ;  Marshall  v.  Morris,  IG  Geo.  368  ; 
and  generally,  almost  any  agreement  which 
is  reasonable,  and  made  bona  fide  before 
marriage,  to  secure  property  to  the  wife, 
will  be  enforced  in  equity :  Stilley  v. 
Folgcr  et  al.,  14  Ohio  G49  ;  Brooks  et  al. 
V.  Dent,  Admr.,  et  al.,  1  Md.  Ch.  Decs.  523  ; 
Wood  V.  Savage,  "Walk.  Ch.  471 ;  Miller  v. 
Goodwin,  8  Gray  542  ;  Robson  v.  Jones,  27 
Geo.  266  ;  Snyder  v.  Webb,  3  Cal.  83  ; 
Page  V.  Kendrick,  10  Mich.  300;  but  a 
post-nuptial  settlement,  made  in  pursu- 
ance of  a  parol  agreement  made  before 
marriage,  is  void  as  to  antecedent  creditors  : 
Reade  v.  Livingston,  3  Johns.  Ch.  481  ; 
Izard  V.  Izard,  1  Bailey  Ch.  288  ;  Davidson 
r.  Graves,  Riley  Ch.  219;  Borst  r.  Covey 
et  al.,  16  Barb.  136;  it  is  otherwise,  how- 
ever, in  regard  to  a  post-nuptial  settle- 
ment, made  in  accordance  with  a  written 
ante-nuptial  agreement;  Reade,  Admr.,  w. 
Livingston  et  al.,  3  Johns.  Ch.  481 ;  Wood- 
ward V.  Woodward,  5  Sneed  49  ;  Kinnard 
V.  Daniel,  13  B.  Mon.  496.  Where  post- 
nuptial settlements  are  made  without  con- 
sideration, they  will  be  governed  by  the 
same  rules  as  voluntary  settlements  ;  thus 
they  are  regarded  as  valid,  if  made  by 
one  not  indebted  at  the  time  :  Sexton  v. 
Wheaton,  8  Wheat.  229;  Picquet  u.  Swan, 
4  Mass.  443;  Simpson  v.  Graves,  Riley  Ch. 
232  ;  United  States  Bank  v.  Ennis,  Wright 
605 ;  Beach  v.  White,  Walker  Ch.  495 ; 
Barker  v.  Coneman,  13  Cal.  9  ;  Reynolds  v. 
Lansford,  16  Texas  286  ;  Townsend  v.  May- 
nard,  45  Penn.  St.  198  ;  Larkin  v.  McMullen, 
49  Id.  29  ;  Dygert  v.  Remerschneider,  39 
Barb.  417  ;  and  even  though  he  be  in- 
debted, provided  he  has  sufficient  pro- 
perty in  addition  to  that  settled,  to  pay 
his  debts,  or  those  debts  are  amply  secured 
by  the  covenants  of  the  settlement : 
Reade,  Admr.,  v.  Livingston  et  al.,  3  Johns. 
Ch.  481;  Picquet  v.  Swan,  4  Mass.  443; 
Thompson  v.  Dougherty,  12  S.  &  R.  448 ; 
Ridgway  v.  Underwood,  4  Wash.  C.  C. 
137  ;  Hopkirk  v.  Randolph,  Admr.,  &c.,  2 


Brockenb.  130 ;  Pinney  ct  al.  v.  Fellows, 
15  Vt.  536  ;  Rundle  v.  Murgatroyd,  4  Dall. 
304  ;  Moritz  v.  Hoffman,  35  111.  553  ;  Levitt 
V.  Levitt,  47  N.  H.  329 ;  or  he  conveys 
nothing  more  than  what  the  equity  of  the 
wife  would  entitle  her  to:  Poindexter  i-.  Jef- 
fries, 15  Gratt  363  ;  Coates  v.  Gerlach,  44 
Penn.  St.  43 ;  Butler t>.  Rickets,  1 1  Iowa  107  ; 
Shaffner  v.  Renter,  37  Barb.  44 ;  or  where 
the  settlement  merely  returns  to  the  wife, 
property  equivalent  to  that  of  hers,  which 
had  been  appropriated  by  the  husband  : 
Wiley  V.  Gray,  36  Miss.  510;  Harris  v. 
Brown,  30  Ala.  401  ;  Stockett  v.  HoUiday, 
9  Md.  480  ;  William  &  Mary  College  v. 
Powell,  12  Gratt.  372;  Tripner  v.  Abra- 
hams, 47  Penn.  St.  227  ;  Latimer  v.  Glenn, 
2  Bush  535;  such  a  deed,  however,  Avill  be 
only  void  as  to  antecedent,  and  not  as  to 
subsequent  creditors :  Hinds,  Lessee,  v. 
Longworthy,  11  Wheat.  199  ;  Reade,  Admr. 
V.  Livingston  et  al.,  3  Johns.  Ch.  481  ; 
Bennett  v.  The  Beford  Bank,  11  Mass.  421  ; 
Ridgway  i'.  Underwood,  4  Wash.  C.  C.  137  ; 
Davis  V.  Herrick,  37  Maine  397  ;  Niller  v. 
Johnson,  27  Md.  6  ;  but  it  has  been  held 
that  a  subsequent  creditor,  would  partici- 
pate in  the  benefit  of  a  decree  instituted 
by  a  prior  creditor :  Ammon's  Ap.,  63  Penn. 
St.  284 ;  where  such  a  conveyance  was 
made  at  the  commencement  of  a  new  and 
hazardous  business,  it  was  held  void  as 
against  debts  contracted  in  that  business: 
Mullen  V.  Wilson  et  al.,  44  Penn.  St.  413. 
And  see  Snyder  v.  Christ,  39  Id.  499; 
Case  V.  Phelps,  39  N.  Y.  164  ;  Clayton  v. 
Brown,  30  Geo.  490. 

In  the  case  of  Salmon  v.  Bennett,  1 
Conn.  525,  C.  J.  Swift  remarks,  "  Where 
there  is  no  actual  fraudulent  intent,  and  a 
voluntary  conveyance  is  made  to  a  child 
in  consideration  of  love  and  affection,  if 
the  grantor  is  in  prosperous  circumstances, 
unembarrassed,  and  not  considerably  in- 
debted, and  the  gift  is  a  reasonable  pro- 
vision for  the  child,  according  to  his  state 
and  condition  in  life,  comprehending  but 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY. 


297 


equal  validity.     But  a  voluntary  settlement  is  liable  to  be  defeated  by 
the  creditors  of  the  settlor,  if  be  was  so  much  indebted  at  the  time  as 


a  small  portion  of  his  estate,  leaving 
ample  funds  unencumbered  for  the  pay- 
ment of  the  grantor's  debt ;  then  such  a 
conveyance  will  be  valid  against  creditors 
existing  at  the  time." 

A  voluntary  settlement  is  also  void,  as  to 
a  subsequent  purchaser,  with  notice  : 
Sterry  v.  Arden  et  al.,  1  Johns.  Ch.  2G1,  af- 
firmed, 12  Johns.  536  ;  Cathcart  et  al.  v. 
Robinson,  5  Peters  264 ;  in  which  last 
case,  C.  J.  Marshall  uses  the  following 
language  :  "There  is  some  contrariety  and 
some  ambiguity  in  the  old  cases  on  this 
subject ;  but  this  court  conceives  that  the 
modern  decisions,  establish  the  absolute 
conclusiveness  of  a  subsequent  sale,  to  fix 
fraud  upon  a  family  settlement,  fraud 
not  to  be  repelled  by  any  circumstances 
whatever."  And  it  does  not  matter 
whether  the  sale  be  from  the  grantor  or 
grantee  under  the  voluntary  deed,  save 
that  if  from  the  latter,  it  must  be  previous 
to  a  sale  by  the  grantor,  or  before  it  is 
taken  in  execution  by  his  creditors:  An- 
derson et  al.  V.  Roberts  et  al.,  18  Johns. 
516;  other  cases,  however,  hold  that  a  vol- 
untary settlement,  though  void  as  to  cred- 
itors, is  good  as  to  the  grantor  and  all 
claiming  under  him  :  Thompson  v.  Doug- 
herty, 12  S.  &  R.  448;  Church  v.  Church, 
4  Yeates  280 ;  Shunk  v.  Endress,  3  W.  & 
S.  253;  Worrall's  Accounts,  5  Id.  113; 
Huey's  Ap.,  29  Penn.  St.  219  ;  but  there  is 
no  question,  that  a  voluntary  settlement 
will  be  good  as  to  existing  creditors,  or 
subsequent  purchasers,  by  matter  ex  post 
facto ;  as  if  one  gains  credit  by  such  set- 
tlement, so  as  to  found  a  consideration  for 
a  marriage  presently  had  :  Sterry  v.  Arden 
etal.,  1  Johns.  Ch.  261,  affirmed,  12  Johns. 
536  ;  Huston's  Admr.  v.  Cantril  et  al.,  11 
Leigh  137  ;  Hopkirk  v.  Randolph,  Admr., 
2  Brockenb.  130.  And  a  post-nuptial  set- 
tlement for  a  valuable  consideration  is 
good,  as  an  ordinary  transfer  of  property  : 
Barron  v.  Barron  et  al.,  24  Vt.  376  ;  Pinney 
et  al.  V.  Fellows,  15  Id.  536 ;  Brooks  et  al. 
V.Dent,  Admr.,  et  al.,  1  Md.  Ch.  Decs.  523  ; 


Livingston  v.  Livingston,  2  Johns.  Ch_ 
537  ;  Ryan,  Admr.,  v.  Bull  et  al.,  3  Strobh. 
Eq.  86  ;  U.  S.  Bank  et  al.  v.  Brown  et  al., 
2  Hill  Ch.  562  ;  Keith  v.  Wombwell,  8  Pick. 
213. 

It  is  not  absolutely  indispensable  that 
there  should  be  a  trustee  to  a  marriage 
settlement:  Carroll  v.  Lee,  Admr.,  3  Gill 
&  Johns.  504 ;  Exr.  of  Allen  v.  Rumph  et 
al.,  2  Hill  Ch.  4 ;  Crostwaight,  &c.,  v. 
Hutchinson,  &c.,  2  Bibb  407  ;  Barron  u. 
Barron  et  al.,  24  Vt.  376  ;  Fox  v.  Jones,  1 
W.  Va.  205  ;  for,  if  no  trustee  is  named, 
the  husband  will  take  that  office  :  Hamilton 
V.  Bishop  et  al.,  8  Yerg.  33;  Picquet  v. 
Swan,  4  Mass.  443 ;  Griffith's  Admr.  v. 
Griffith,  5  B.  Mon.  118 ;  Baldwin  v.  Carter, 
17  Conn.  201  ;  Kenley  v.  Kenley,  2  How. 
(Miss.)  751 ;  Parks  v.  Noble,  9  Rich.  Eq. 
85  ;  Resor  v.  Resor,  9  Ind.  347  ;  Riley  v. 
Riley,  25  Conn.  154  ;  but,  agreements  en- 
tered into  between  husband  and  wife 
during  coverture  are  void  at  law :  Wallings- 
ford  V.  Allen,  10  Peters  583;  Sheppard  v. 
Sheppard,  7  Johns.  Ch.  57  ;  Harkins  et  al. 
V.  Coulter  et  al.,  2  Port.  463  ;  Dufiy  v.  The 
Insurance  Co.,  8  W.  &  S.  413  ;  Wood  v. 
Warden,  Admr.,  &c.,  20  Ohio  521  ;  Hutton 
V.  Hutton's  Admr.,  3  Penn.  St.  100  ; 
Johnston  v.  Johnston,  1  Grant  Cas.  468 ; 
Bear  v.  Bear,  33  Penn.  St.  525  ;  Fowler  v. 
Trebein,  16  Ohio  St.  493  ;  though  they  are 
good  in  equity,  if  upon  a  valuable  consid- 
eration :  Wallingsford  v.  Allen,  10  Peters 
583  ;  Sheppard  v.  Sheppard,  7  Johns.  Ch. 
57  ;  Harkins  et  al.  v.  Coulter  et  al.,  2  Port. 
463  ;  McKennan  v.  Phillips,  6  Whart.  571  ; 
Trenton  Banking  Co.  v.  Woodruff  et  al.,  I 
Green  Ch.  117;  Shirley  v.  Shirley  et  al.,  9 
Paige  Ch.  363  ;  Griffith's  Admr.  v.  Griffith, 
5  B.  Mon.  118  ;  Bridges  v.  Wood,  4  Dana 
610  ;  Smith  v.  Smith's  Admr.,  6  Munf.  581  ; 
Duffy  V.  The  Insurance  Co.,  8  W.  &  S. 
413;  Wood  v.  Warden,  Admr.,  20  Ohio 
521  ;  Stiles  v.  Fleming,  Exr.,  et  al.,  1  Dev. 
Eq.  185  ;  Ex  parte  Wells,  3  Desauss.  158  ; 
Hutton  V.  Hutton's  Admr.,  3  Penn.  St. 
100;  Wells  v.  Wells,  35  Miss.  638  ;  Deming 


297  OF   PERSONAL    ESTATE    GENERALLY. 

to  bring  the  settlement  within  the  provisions  of  the  statute  of  the  13th 
of  Elizabeth(a)  already  noticed, (i)  by  which  the  alienation  of  goods  and 
chattels  made  for  the  purpose  of  delaying,  hindering  or  defrauding 
creditors,  is  rendered  void  as  against  them.  For  although  by  the  phrase 
"  goods  and  chattels  "  was  intended  only  such  personal  property  as  could 
be  taken  by  the  sheriff- under  an  execution  on  a  judgment,(c)  but  as 
almost  all  kinds  of  personal  property  may  now  be  taken  in  execution, (cZ) 
or  charged  with  the  payment  of  judgment  debts,(e)  all  such  property  is 
r*0Q81  "*^^  within  the  compass  of  the  statute.(/)^  *The  voluntary 
assignment  of  goods  or  chattels,  or  delivery  or  making  over  of 
bills,  bonds,  notes  or  other  securities,  or  the  voluntary  transfer  of  any 
debts  made  by  a  person  being  at  the  time  insolvent,(^)  was  by  the  former 
bankruptcy  acts  void  in  the  event  of  his  bankruptcy. (/i)  This  provision 
embraced  all  personal  estate  capable  of  assignment  or  transfer  :(z')  but  it 
did  not  extend  to  a  gift  of  money.(y)     The  provisions  of  the  Bank- 

(a)  Stat.  13  Eliz.  c.  5  ;  Sharf  «.  Soulby,  1  Macn.  &  G.  364. 
(6)  Ante,  p.  48. 

(c)  Sims  V.  Thomas,  2  Ad.  &  E.  536  (E.  C.  L.  R.  vol.  29).     See  ante,  p.  51. 

(d)  Stat.  1  &  2  Vict.  c.  110,  s.  12.     See  ante,  p.  119. 

(e)  Stats.  1  &  2  Vict.  c.  110,  s.  14  ;  3  &  4  Vict.  c.  82,  s.  1 ;  ante,  p.  119. 

(/)  See  Edwards  v.  Cooper,  11  Q.  B.  33  (E.  C.  L.  R.  vol.  63)  ;  Barrack  r.  M'Culloch, 
3  Kay  &  John.  110;  Jenkyn  v.  Vaughan,  3  Drew.  419. 

(g)  See  Cutten  v.  Sanger,  2  You.  &  Jer.  459. 

(h)  Stat.  12  &  13  Vict.  c.  106,  s.  126,  repealing  stat.  6  Geo.  IV.  c.  16,  s.  73,  to  the 
same  effect. 

(t)  Brown  v.  Bellaris,  5  Mad.  53. 

(j)  Ex  parte  Shortland,  1  Ves.  88  ;  Kensington  v.  Chandler,  2  M.  &  Selw.  3G  ;  Ex 
parte  Skerett,  2  Rose  384. 

V.  Williams,  26  Conn.  226  ;  Simons  v.  Mc-  tion,  is  void  as  against  public  policy;  but 
Elwain,  26  Barb.  420 ;  but  an  agreement  when  made  in  contemplation  of  the  con- 
between  husband  and  wife  to  live  sepa-  tinuance  of  a  previous  separation,  or  of 
rate  and  apart  from  each  other,  is  good  disagreements  which  have  already  taken 
neither  at  law  nor  in  equity,  unless  place,  is  good :  Gaines  v.  Poor,  3  Mete, 
through    the   intervention  of    a   trustee  :  (Ky.)  503. 

McKennan  v.  Phillips,  6  Vt.  571  ;  Simpson  ^  But  in  Pennsylvania,  lands  are  con- 
V.  Simpson,  4  Dana  141 ;  Carson  v.  Murray  sidered  as  chattels  for  the  payment  of 
et  al.,  3  Paige  483;  Reed  v.  Beazley,  1  debts  ;  creditors  have  a  legal  right  to  take 
Blackf.  07  ;  Rogers  v.  Rogers,  4  Paige  516  ;  the  property  of  their  debtors  in  execution, 
Champlin  v.  Champlin  et  al.,  1  Hoff.  Ch.  and  any  conveyance  made  to  defeat  them 
55 ;  the  contrary  has,  however,  been  held,  is  void  :  Reichart  v.  Castator,  5  Binn.  112  ; 
where  the  agreement  was  consummated;  and  in  case  of  insolvency,  the  assignees 
see  Hutton  v.  Button's  Admr.,  3  Penn.  St.  have  power  to  recover  and  dispose  of  all 
100.  such  real  or  personal  estate,  as  the  insol- 
A  contract  by  a  husband  during  mar-  vent  shall  have  (prior  to  the  assignment) 
riage,  while  living  in  amity,  or  before  conveyed  or  transferred  with  intent  to  de- 
marriage,  to  pay  an  allowance  for  the  sup-  fraud  his  creditors  :  Purd.  Dig.  (1861),  pp. 
port  of  his  wife  in  case  of  a  future  separa-  542,  543. 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.  298 

ruptcy  Act,  1869,  on  this  subject  are  very  stringent,  and  have  been 
already  mentioned.  And  the  word  "  property,"  which  is  employed  by 
the  act,  is  expressly  defined  by  it  to  include  money  as  well  as  every  other 
description  of  property. (^)^ 

Although  a  voluntary  settlement  may  thus  be  defeated  by  creditors, 
yet  when  once  completed,  it  is  binding  on  the  settlor,  who  cannot  by  any 
means  undo  it.(Z)  Thus,  in  one  case,(w)  a  maiden  lady  not  immediately 
contemplating  marriage,  but  thinking  such  an  event  possible,  transferred 
a  sum  of  stock  into  the  names  of  trustees  in  trust  for  herself  until  she 
should  marry,  and,  after  her  marriage,  in  trust  for  her  separate  use  for 
her  life,  free  from  the  control  of  any  person  or  persons  with  whom 
*she  might  intermarry,  and  after  her  decease,  upon  trusts  for  r^QQQ-i 
the  benefit  of  any  such  husband,  and  her  child  or  children  by 
any  husband  or  husbands.  She  afterwards  being  still  unmarried,  filed  a 
bill  in  Chancery,  praying  that  the  settlement  might  be  delivered  up  to 
her  to  be  cancelled,  and  that  the  stock  might  be  ordered  to  be  re- 
transferred  by  the  trustees.  But  the  court  held  that  she  was  bound  by 
the  settlement  she  had  made,  and  was  not  entitled  to  any  assistance 
to  release  her  from  it.^ 

If  however  the  object  of  the  settlor  is  merely  his  own  benefit  or 
convenience,  the  settlement  will  be  revocable  by  him-  at  his  pleasure. 
Thus  where  a  man,  without  any  communication  with  his  creditors,  puts 
property  into  the  hands  of  trustees  for  the  purpose  of  paying  his  debts, 
his  object  is  said  to  be,  not  to  benefit  his  creditors,  but  to  benefit  him- 
self by  the  payment  of  his  debts.(7i)  He  may  accordingly  revoke  the 
trust  thus  created(o),  so  long  as  the  creditors  remain  in  ignorance  of 

(k)  Ante,  pp.  153,  154.     Stat.  32  &  33  Vict.  c.  71,  s.  4. 

(1)  Ellisoa  V.  Ellison,  6  Ves.  656;  Edwards  v.  Jones,  1  Myl.  &  Cr.  226  ;  Newton  v. 
Askew,  11  Beav.  145  ;  Kekwich  v.  Manning,  1  De  G.,  M.  &  G.  176 ;  Bentley  v.  Mackay, 
15  Beav.  12  ;  Bridge  v.  Bridge,  16  Beav.  315  ;  Re  Way's  Settlement,  Lds.  Jus.  13  W.  R. 
149;  2  De  G.,  J.  &  S.  365. 

(m)  Bill  V.  Cureton,  2  Myl.  &  K.  503.  See  also  Petre  v.  Espinasse,  2  Myl.  &  K.  496; 
M'Donnell  v.  Hesilridge,  16  Beav.  346;  Donaldson  v.  Donaldson,  1  Kay  711. 

(«)  Per  Sir  C.  Pepys,  M.  R.,  2  Myl.  &  K.  511 ;  cited  by  Wigram,  V.-C,  in  Hughes  v. 
Stubbs,  1  Hare  479. 

(o)  Garrard  v.  Lord  Lauderdale,  3  Sim.  1  ;  Acton  v.  Woodgate,  2  Myl.  &  K.  492; 
Ravenshaw  v.  HoUier,  7  Sim.  3  ;  Law  v.  Bagwell,  4  Dru.  &  Warren  398 ;  Smith  v.  Keat- 
ing, 6  C.  B.  136  (E.  C.  L.  R.  vol.  60) ;  Driver  v.  Mawdesley,  16  Sim.  511. 

1  See  ante,  p.  135,  note,  and  154,  note.  *  See  ante,  p.  297,  note. 


299  OF   PERSONAL   ESTATE   GENERALLY. 

it.{p)  This  rule,  however,  though  well  established,  seems  to  attribute  to 
debtors  a  somewhat  light  estimation  of  the  claims  of  their  creditors; 
and  there  appears  to  be  no  disposition  in  the  courts  to  extend  \t.{q) 

The  statute  of  Elizabeth,(r)  by  which  voluntary  *settlement3 
^  -'of  lands  and  other  hereditaments  are  void  as  against  subsequent 
purchasers  for  valuable  consideration,  though  it  extends  to  chattels  real,(s) 
does  not  apply  to  purely  personal  estate. («y  A  voluntary  settlement  of 
personal  estate  cannot  therefore  be  defeated  by  a  subsequent  sale  of  the 
property  by  the  settlor. 

Settlements  of  any  definite  and  certain  principal  sum  of  money,  of 
any  denomination  or  currency,  whether  British,  foreign  or  colonial,  or  of 
any  definite  and  certain  share  in  the  funds,  or  Bank,  East  India,  or 
South  Sea  stock,  or  in  the  stock  or  funds  of  any  other  company  or 
corporation,  or  in  the  stocks  or  funds  of  any  foreign  or  colonial  govern- 
ment, state,  corporation  or  company  whatsoever,  are  now  liable  to  an  ad 
valorem  duty  of  one-fourth  per.  cent.,  or  five  shillings  per  hundred 
pounds,  on  the  amount  of  the  money  or  the  value  of  the  stock  or  share 
settled,  according  to  the  table  contained  in  the  Stamp  Act,{u)  with  a 
progressive  duty  of  ten  shillings  for  every  eyitire  quantity  of  1080  words 
beyond  the  first  1080.     The  duty  on  the  settlement  of  money  secured 

{p)  Browne  v.  Cavendish,  1  Jones  &  Lat.  606,  635  ;  Griffith  v.  Ricketts,  1  Hare  299, 
307  ;  Mackinnon  v.  Stewart,  1  Sim.  N.  C.  76,  89,  90 ;  Harland  v.  Binks,  15  Q.  B.  713  (E. 
C.  L.  R.  vol.  69) ;  Smith  v.  Hurst,  10  Hare  30.  But  see  Cornthwaite  v.  Frith,  4  De 
G.  &  Sm.  552. 

(q)  See  Wilding  v.  Richards,  1  Coll.  661  ;  Simmonds  v.  Palles,  2  Jones  &  Lat.  489  ; 
Kirman  v.  Daniel,  5  Hare  493,  499-501. 

(r)  Stat.  27  Eliz.  c.  4;  Principles  of  the  Law  of  Real  Property  56,  1st  ed. ;  59,  2d 
ed. ;  62,  3d  and  4th  eds. ;  67,  5th  ed. ;  71,  6th  ed. ;  73,  7th  ed. ;  74,  8th  ed. 

(«)  Co.  Litt.  3  b;  6  Rep.  72.  (t)  2  Myl.  &  K.  512. 

(m)  Stat.  13  &  14  Vict.  c.  97  ;  27  Vict.  c.  18,  ss.  11-13. 


1  On   the   subject   of   voluntary  settle-  Admr.,  «;.  Cantrill  et  al.,   11   Leigh   157; 

ments  of  personal  estates,  and  that  their  Bentley  et  al.   v.  Harris,  Admr.,  2  Gratt. 

validity  or  invalidity  is,   in  this  country,  357;   Beckham  v.  Secrest,  2  Rich.  Eq.  54 ; 

as   a   general    thing,    determined   by   the  Worthington  et  al.  v.  Shipley,  5  Gill  445  ; 

same    rules  which    regulate    such    settle-  Fleming  jj.  Townsend,  6  Geo.  103 ;  Wilson 

ments  of  land,   see   Bayard   et  al.  v.  Hoff-  v.  Buchanan,  7  Gratt.  334  ;  Smith  v.  Stern, 

man  et  al.,  4  Johns.  Ch.  450;  Bank  U.  S.  18   Penn.  St.  360  ;    McVicker  v.  May,  3  Id. 

et   al.  V.   Huth,   4  B.   Mon.  444  ;    Bohn   v.  227  ;  Penrod  v.  Morrison,  Admr.,  2  Penna. 

Headley,  7  Har.  &  Johns.  257  ;   Toumin  v.  R.  126  ;  Clemens  v.  Davis,  7  Penn.  St.  264 ; 

Buchanan's  Exr.,  1  Stew.  67  ;  Backhouse's  Streeper  v.  Eckert,  2  Whart.  302  ;  Stark  v, 

Admr.  v.  Jett's  Admr.,  1   Brockenb.  500  ;  Ward,  3  Penn.   St.  328 ;   Forsyth   v.   Mat- 

Thayer  v.  Thayer  et  al.,  14  Vt.  107  ;  Davis  thews,  12  Id.  100. 
V.  Payne's  Admr.,  4  Rand.  332  ;  Huston, 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY. 


300 


by  a  policy  of  assurance  is  now  charged  on  the  sum  secured ;  but  if  there 
be  not  any  certain  covenant,  contract  or  provision  made  for  keeping  up 
such  policy  or  for  paying  the  premiums  which  may  become  payable  in 
that  behalf,  then  the  ad  valorem  duty  is  chargeable  only  on  the  value  of 
the  policy  at  the  date  of  the  settlement. (a;) 

By  the  Succession  Duty  Act,  1853,(y)  provision  has  been  made  for 
charging  certain  duties  on  the  succession  *to  property  upon  the  r^qn-i-i 
death  of  any  person  dying  after  the  19th  of  May,  1853.  These 
duties  are  at  the  same  rates  as  the  lagacy  duty,  of  which  an  account  will 
be  given  in  the  chapter  on  wills,  increasing  in  proportion  to  the 
distance  in  consanguinity  between  the  predecessor,  from  whom  the  interest 
succeeded  to  is  derived,  and  the  successor.^ 


{z)  Stat.  27  Vict.  c.  18,  s.  12. 


(y)  Stat.  16  &  17  Vict.  c.  51. 


1  A  provision  similar  to  that  referred  to 
in  the  text  was  enacted  by  the  Act  of  Con- 
gress, approved  June,  30,  1864,  and  known 
as  the  "  Internal  Revenue  Law."  The  124th 
and  125th  sees,  of  said  act,  relate  to  the 
tax  upon  legacies  and  distributive  shares 
of  personal  property.  Sec.  126,  and  some 
subsequent  sees,  of  the  same  act,  refer  to 


the  succession  of  real  estate,  and  the 
amount  and  manner  of  levying  tax  thereon . 
But  the  third  section  of  the  Act  of  Con- 
gress, of  the  14th  of  July,  1870,  repealed 
the  taxes  imposed  by  the  Internal  Revenue 
Law  on  legacies  and  successions.  Stats, 
at  Large  (1869-70),  p.  256,  sec.  3. 


[*302]  *CHAPTER   II, 

OF   JOINT   OWNERSHIP   AND    JOINT   LIABILITY. 

There  may  be  a  joint  ownership  of  any  kind  of  personal  property,  in 
the  same  manner  as  there  may  be  a  joint  tenancy  of  real  estate  ;(a)  and 
the  four  unities  of  possession,  interest,  title  and  time,  which  characterize 
a  joint  tenancy  of  real  estate,  apply  also  to  a  joint  ownership  of  chattels. 
But  as  no  estates  can  exist  in  personal  property,  the  distinction's  which 
hold  with  respect  to  joint  estates  for  life,  in  tail,  or  in  fee,  do  not  occur 
in  a  joint  ownership  of  personalty.  If  personal  property,  whether  in 
possession  or  in  action,  be  given  to  A.  and  B.  simply,  they  will  be  joint 
owners,  having  equal  rights  as  between  themselves,  during  the  joint 
ownership,  and  being,  with  respect  to  all  other  persons  than  themselves, 
in  the  position  of  one  single  owner.  Hence  it  follows,  that  if  a  bond  or 
covenant  be  given  or  made  to  two  or  more  jointly,  they  must  all  join  in 
suing  upon  it  ;(5)  and  a  release  by  one  of  them  to  the  obligor  is  sufficient 
to  bar  them  all.(<?)'     As  a  further  consequence  of  the  unity  of  a  joint 

(a)  See  Principles  of  the  Law  of  Real  Property  99,  1st  ed. ;  104,  2d  ed.  ;,  109,  3d 
and  4th  eds. ;  114,  5th  ed. ;  120,  6th  ed. ;  123,  7th  ed. ;  128,  8th  ed. 

{b)  Slingsby's  Case,  5  Rep.  18  b  ;  Petrie  v.  Bury,  3  B.  &C.  353  (E.  C.  L.  R.  vol.  10) ; 
1  Wms.  Saund.  291  i. 

(c)   2  Rol.  Abr.  410  (D.),  pi.  1,  5. 


1  In  general  all  the  obligees  or  covenan-  and  the  joint  owners  of  personal  property, 
tees  should  join  in  suing  upon  a  joint  con-  are  properly  joined  in  an  action  of  replevin 
tract:  Eisenhart  et  al.  v.  Slaymaker,  14  S.  to  recover  possession:  McArthur  v  Lane, 
&  R.  153;  Halliday  v.  Doggett  et  al.,  6  15  Maine  245;  Hart  v.  Fitzgerald,  2  Mass. 
Pick.  359;  Williams  et  al.  v.  Ehringhaus  509;  provided  their  interests  in  the  pro- 
et  al.,  2  Dev.  511;  Blanchard  v.  Dyer,  21  perty  are  not  separate  and  distinct:  Cham- 
Maine  111  ;  Moody  et  al.  v.  Sewall,  14  Id.  bers  v.  Hunt,  15  Penn.  St.  343;  and  they 
295;  Darling  v.  Simpson,  15  Id.  175;  Jelli-  may  also  join,  in  an  action  of  trespass  for 
son  V.  Lafonta,  19  Pick.  245;  Archer  v.  an  injury  thereto :  Glover  et  al.  w.  Austin, 
Dunn,  2  W.  &  S.  3G0 ;  Sims  v.  Tyre,  3  6  Pick.  209 ;  Pickering  v.  Pickering  et  al., 
Brev.  249 ;  Hays  et  al.  v.  Lasater  et  al.,  3  11  N.  H.  141 ;  Smoot  v.  Wathen,  Admr.,  8 
Pike  565;  Archer  v.  Boyne,  3  Scam.  526;  Misso.  525;  Douty  v.  Bird,  60  Penn.  St. 
Richardson  v.  Jones,  1  Ired.  296  ;  Bailey  v.  48.  But  all  the  parties  plaintiffs  need  not 
Powell  et  al.,  11  Misso.  416 ;  Sims  et  al.  v.  be  joined,  provided  there  is  a  legal  cause 
Harris,  8  B.  Mon.  55  ;  Strange  v.  Floyd,  9  for  omitting  some,  such  as  their  death, 
Gratt.  474  ;  Quisenberry  v.  Artis,  1  Duvall  coverture,  or  refusing  to  be  joined  :  Sneed 
(Ky.)    30;   Deshler  v.   Beers,   32  111.  368;  v.  Wiester,  &c.,  2  Marsh.  283;  Hays  et  al. 


OF   JOINT   OWNERSHIP   AND   JOINT   LIABILITY. 


302 


ownership,  the  important  right  of  survivorship,  which  distinguishes  a 
joint  tenancy  of  real  estate,  belongs  also  to  a  joint  ownership  of  personal 
property.  Whether  the  subject  of  the  joint  ownership  be  a  chattel  real 
as  a  lease,  or  a  chose  in  possession  as  a  horse,  or  a  chose  in  action  as  a 
debt  or  legacy,  the  surviving  joint  owner  will  be  entitled  to  the  whole, 
*unaffected  by  any  disposition  which  the  deceased  joint  owner  ^qaqt 
may  have  made  by  his  will,  unless  the  joint  tenancy  should  have    L         J 


V.  Lasater,  3  Pike  565 ;  Strange  v.  Floyd, 
9  Gratt.  474.  So,  where  the  moving  cause 
of  action,  of  two  or  more  joint  covenan- 
tees, is  several,  and  not  joint,  each  may 
maintain  his  several  action  on  the  cove- 
nant:  Blakey,  &c.,  v.  Blakey  et  al.,  2  Dana 
462;  Bailey  v.  Powell  et  al.,  11  Misso. 
419;  Sims  et  al.  v.  Harris,  8  B.  Mon.  55; 
Catawissa  R.  R.  Co.  v.  Titus,  49  Penn.  St. 
277;  Power  v.  Hathaway,  43  Barb.  214; 
Little  V.  Hobbs,  8  Jones  L.  179;  thus, 
where  several  were  interested  in  a  fund, 
and  one  was  paid  his  share,  it  was  held 
that  the  others  were  entitled  to  sue  sepa- 
rately, the  payment  of  the  one  being  con- 
sidered an  acknowledgment  on  the  part  of 
the  debtor,  that  they  had  several  inter- 
ests:  Parker  v.  Elder,  11  Humph.  547; 
and,  where  there  are  joint  owners  of  a 
vessel,  one  may  sue  for  his  share,  of  the 
surplus  proceeds  of  a  sale  on  execution 
against  himself  and  the  other  owners: 
Hopkins  v.  Forsyth,  12  Penn.  St.  34.  And 
see  State  v.  Hesselmeyer,  34  Misso.  76 ; 
Steadman  v.  Guthrie,  4  Mete.  (Ky.)  147; 
Rhoads  v.  Booth,  14  Iowa  572  ;  Masters  v. 
Freeman,  17  Ohio  St.  323. 

In  the  case  of  Mytinger  v.  Springer,  3  W. 
&  S.  405,  where  money  was  contributed  by 
several  individuals,  and  deposited  in  the 
hands  of  a  stakeholder,  as  a  wager  upon 
the  result  of  an  election,  it  was  held  by 
Rogers,  J.,  that,  "If  there  were  originally 
a  partnership,  it  being  illegal,  it  would  go 
for  nothing,  and  each  of  the  parties  would 
_  recover  only  on  his  original  right  of  ac- 
tion, and  consequently  for  himself.  The 
law  will  not  recognize  a  partnership  for 
an  illegal  purpose,  and  for  that  reason  the 
court  is  bound  to  treat  the  transaction  of 
partnership  as  if  it  had  never  been  ;"  and 
in  the  case  of  App  v.  Coryell,  3  Penna.  R. 
494,   where   a   similar   principle  was   in- 


volved, the  court  said,  "  The  contract 
being  void,  the  money  could  be  recovered 
only  on  the  promise  implied  from  the  re- 
ceipt of  it  to  the  plaintiff's  use,  which  in 
this  respect,  is  determined  by  the  nature 
of  the  consideration,  ....  no  money, 
however,  is  received  to  a  man's  use,  but 
his  own;  consequently  the  law  implies  no 
promise  to  any  one  but  the  owner."  But 
see  to  the  contrary  of  these  cases :  Gray  v. 
Wilson,  1  Meigs  394,  decided  in  Tennessee, 
where  betting  is  not  forbidden  by  statute, 
and  which  also  holds,  "  that  though  one 
of  several  interested  in  a  joint  fund,  be 
paid,  he  cannot,  without  the  consent  of  all, 
withdraw  his  name,  or  dismiss  the  suit, 
even  as  to  himself." 

Even  though  the  interests  of  those 
making  the  contract  are  unequal,  if  the 
contract  is  made  by  them  all  jointly,  they 
should  all  join  in  suing  upon  it:  Gayle  v. 
Martin,  3  Ala.  593 ;  Haughton  et  al.  v. 
Bayley  et  al.,  9  Ired.  337. 

A  release  by  one  partner  of  a  partner- 
ship debt,  will  extinguish  the  claim  of  all 
the  partners ;  a  principle  equally  true  in 
all  cases  of  joint  contracts:  Pierson  et  al. 
V.  Hooker,  3  Johns.  68 ;  Southworth  v. 
Packard,  7  Mass.  95 ;  Kimball  et  al.  ■;;. 
Wilson,  3  N.  H.  96  ;  Fitch  et  al.  v.  Forman, 
14  Johns.  172  ;  Salmon  et  al.  v.  Davis,  4 
Binn.  375;  Hall  v.  Gray,  54  Maine  230. 

In  case  of  the  death  of  one  or  more  of 
the  parties  to  a  joint  contract,  the  survi- 
vors or  survivor  must  sue  upon  the  claim: 
Beebe  et  al.,  Exrs.,  v.  Miller,  Minor  364; 
Vandenheuvel  v.  Storrs,  3  Conn.  203 ; 
Collison  V.  Little,  2  Port.  89;  Penn  v. 
Butler,  4  Dall.  354  ;  and  when  all  are  dead, 
the  action  should  be  brought  by  the 
representatives  of  the  last  survivor : 
Stowell's  Admr.  v.  Drake,  3  Zabr.  310. 


303  OF   PERSONAL   ESTATE  GENERALLY. 

been  previously  severed  in  the  lifetime  of  both  the  parties. (<^)  And  for 
this  reason  trustees  of  settlements  of  personal  estate  are  always  made 
joint  owners,  in  order  that  the  surviving  trustees  may  take  the  entire 
fund,  rather  than  that  the  executors  or  administrators  of  any  trustee 
who  may  happen  to  die  should  have  any  right  to  intermeddle  with  the 
share  of  the  deceased.  Where  any  beneficial  interest  accrues  to  any 
joint  owner  by  survivorship,  it  is  deemed  a  succession  within  the  Suc- 
cession Duty  Act,  1853,  and  as  such  liable  to  the  succession  duty.(gy 

If  the  joint  ownership  be  created  by  a  will,  it  is  not  necessary  that 
the  share  of  all  the  joint  owners  should  vest  at  the  same  time.  Thus 
under  a  bequest  to  A.  for  life,  and  after  his  decease  to  the  issue(/)  or 
children(^)  of  B,,  without  words  of  severance,  all  the  issue  or  children, 
born  in  A.'s  lifetime,  will  become  entitled  jointly,  though  some  may  not 
be  living  when  the  shares  of  the  others  become  vested  interests.^  On  the 
decease  of  any  of  them  therefore  before  payment,  the  survivors  will  be- 
come entitled  to  their  shares.  A  similar  exception  to  the  unity  of  time 
occurs  also  in  the  case  of  a  devise  of  real  estate  by  will.(^) 

In  analogy  to  the  rule  by  which  a  joint  estate  in  fee-simple  in  lands  is 
r*^nj.n  created  by  a  limitation  to  two  or  *more,  their  heirs  and  assigns, 
it  is  customary  with  conveyancers  to  made  a  gift  of  personal 
estate  to  two  or  more  jointly,  by  limiting  it  to  them,  their  executors, 
administrators  and  assigns.  This,  however,  though  usual  is  not  strictly 
necessary.  In  ill-framed  instruments,  limitations  of  personalty  are  some- 
times made  to  two  persons,  "  and  the  survivor  of  them,  and  the  execu- 
tors and  administrators  of  such  survivor."  If,  however,  the  persons  are 
simply  made  joint  owners,  the  law  will  be  sufficient  of  itself  to  carry  the 
property  to  the  survivor.  Bonds  and  covenants,  when  intended  to  be 
given  or  made  to  two  or  more  jointly,  are  in  like  manner  usually  given 
or  made  to  the  obligees  or  covenantees,  their  executors  and  administra- 
tors ;  or  if  the  subject-matter  be  assignable,  to  them,  their  executors,  ad- 
ministr<itors  and  assigns.  But  when  entered  into  w^ith  two  or  more 
persons,  bonds  or  eovenants  cannot,  as  respects  the  obligees  or  covenan- 

(d)  Litt.  sects.  281,  282;  Lady  Shore  v.  Billingsley,  1  Vern.  482  j  Willing  v.  Baine, 
3  P.  Wms-  115  ;  Morley  v.  Bird,  3  Ves.  629 ;  Williams  v.  Hensliaw,  1  John.  &  H.  546. 

(c)  Stat.  16  &  11  Vict.  c.  51,  s.  3  ;  ante,  p.  300. 

(/)  Bridge  v.  Yates,  12  Sim.  645.  (y)  Amies  v.  Skillern,  14  Sim.  428. 

(h)  See  Principles  of  the  Law  of  Real  Property  102,  1st  ed.  ;  107,  2d  ed.  ;  112,  3d 
and  4th  eds.;  117,  5th  ed  ;  1^23,  6th  fid.;  126,  7th  ed.  ;  131,  8th  ed. 

1  See  ante  p.  301,  note  1.  » See  ante,  p.  277,  note  1. 


« 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY. 


304 


tees,  be  joint  or  several,  at  their  election,  for  one  and  the  same  cause ; 
for  otherwise  the  court  would  be  in  doubt  for  which  of  them  to  give 
judgment.(^)  And  whether  a  covenant  be  joint  or  several  depends  much 
more  upon  the  subject-matter  than  upon  the  words  employed.  If  each 
of  the  covenantees  has  a  separate  interest,  each  may  have  a  separate 
cause  of  action,  and  the  covenant  will  accordingly  in  such  a  case  be 
several,  though  expressed  to  be  made  with  the  covenantees  jointly  and 
severally,  (y)  But  if  each  of  the  covenantees  has  not  a  separate  cause  of 
action,  all  of  them  must  concur  in  suing  upon  the  covenant,  even  al- 
though it  be  expressed  to  be  made  with  some  of  them,  "  and  as  a  sepa- 
rate covenant  "  with  the  other  ;(^)  for  if  all  may  sue,  all  must.(Z) 

*An  exception  to  the  right  of  survivorship  between  joint  r*oAc-| 
owners  occurs  in  the  case  of  partners  in  trade.^     In  this  case  the 

{{)  5  Rep.  19  a;  1  East  501. 

(J)  5  Rep.  19  a  ;  1  Wms.  Saund.  155  a,  n.  (1). 

(k)  Slingby's  Case,  5  Rep.  18  b  ;  Anderson  «.  Martindale,  1  East  49T  ;  Foley  v.  Adden- 
brooke,  4  Q.  B.  197  (E.  C.  L.  R.  vol.  45)  ;  Hopkinson  v.  Lee,  6  Q.  B.  964  (E.  C.  L.  R. 
vol.  51) ;  Bradburne  v.  Botfield,  14  M.  &  W.  559;  Wakefield  v.  Brown,  9  Q.  B.  209  (E. 
C.  L.  R.  vol.  58) ;  Keightly  v.  Watson,  3  Exch.  Rep.  716.  « 

(Z)  4  Q.  B.  208  (E.  C.  L.  R.  vol.  45)  ;  Wetherell  v.  Langston,  1  Exch.  Rep.  634;  Pugli 
V.  Stringfield,  3  C.  B.  N.  S.  2  (E.  C.  L.  R.  vol.  91). 


^  In  cases  of  solvency,  the  surviving 
partner  is  the  owner  at  law,  of  all  the 
partnership  effects  :  Knox  v.  Schepler,  2 
Hill  595  ;  Slatter  v.  Carrol,  2  Sandf.  Ch. 
580  ;  Territory  of  Florida,  for  the  use,  &c., 
V.  Redding  et  al.,  1  Fla.  444 ;  Roys  v.  Vi- 
las, 18  Wis.  169  ;  Stearns  v.  Houghton,  38 
Vt.  583 ;  and  as  such  is  the  party  to  sue 
and  be  sued,  for  all  partnership  claims  or 
liabilities :  Alsop  v.  Mather,  8  Conn.  587  ; 
Pendleton  et  al.  v.  Phelps  et  al.,  4  Day 
476 ;  Sturgess  v.  Beach,  1  Conn.  509 ; 
Yale  V.  Yale,  13  Id.  185  ;  Egberts  et  al.  v. 
Wood  et  al.,  3  Paige  Ch.  517 ;  Sale  v. 
Dishman's  Exrs.,  3  Leigh  548 ;  Linney's 
Admr.  v.  Dare's  Admr.  et  al.,  2  Id.  595  ; 
Boyce  v.  Coster,  4  Strob.  Eq.  30  ;  McCand- 
less  &  Co.  V.  Hadden,  9  B.  Mon.  18G  ;  Ber- 
nard V.  Wilcox,  2  Johns.  Cas.  374;  Mar- 
shall et  al.  V.  De  Groot,  1  Caine  Cas. 
122  ;  Roosevelt  et  al.  v.  McDowell,  Exr.,  1 
Kelly  489;  Clarke,  Admr.,  v.  Howe,  23 
Maine  560 ;  Philson  v.  Admr.  of  Bamp- 
field,  1  Brev.  202 ;  Davis  v.  Church,  1 
24 


W.  &  S.  240  ;  Caldwell,  Admr.,  &c.,  v. 
Stileman,  1  Rawle  215  ;  Gardiner,  Admr., 
V.  Cummings  et  al.,  1  Geo.  Decs.  1 ;  Har- 
wood  et  al.  v.  Jones,  10  Gill  &  Johns.  405  ; 
Robinson  v.  Thompson  et  al.,  1  Sm.  &  M. 
Ch.  454;  Hammon  v.  St.  John  et  al.,  4 
Yerg.  107  ;  Southard  v.  Lewis,  4  Dana 
148 ;  Andrew's  Heirs,  &c.,  v.  Brown's 
Admr.  et  al.,  21  Ala.  437;  Walker,  Admr. 
et  al.  V.  House,  4  Md.  Ch.  Decs.  44  ;  Burg- 
win  V.  Admr.  of  Hostler,  1  Tayl.  124 ; 
Ward  V.  Barber,  1  E.  D.  Smith  423  ;  Wil- 
son V.  Soper,  13  B.  Mon.  411;  Hoskinson 
V.  Eliot,  02  Penn.  St.  393.  This yws  accres- 
cendi,  only  holds  to  enable  the  survivor 
to  get  in  the  debts,  and  settle  the  affairs 
of  the  firm  :  Jarvis  v.  Hyer  et  al.,  4  Dev. 
367  ;  Holland  v.  Fuller,  13  Ind.  195  ;  and 
his  interest,  therefore,  is  merely  a  legal 
one,  which  he  must  use  for  the  purpose  of 
bringing  the  partnership  accounts  to  a 
settlement:  Lang's  Heirs  v.  Warning,  17 
Ala.  154  ;  White  v.  The  Union  Insurance 
Company,  1  N.  &  McCord  557  ;  McCormick's 


305 


OP    PERSONAL    ESTATE    GENERALLY. 


law,  in  order  to  the  encouragement  of  commerce,  vests  in  the  executors 
or  administrators  of  a  deceased  partner,  the  share  of  the  deceased  in  all 


Ap.,  55  Penn.  St.  252  ;  Tillotson  v.  Tillot- 
son,  34  Conn.  335  ;  but  in  Louisiana  this 
is  not  an  absolute  right,  being  dependent 
on  the  consent  of  the  heirs  present  or  rep- 
resented in  the  State :  McKowen  v.  Mc- 
Guire,  15  La.  Ann.  671  ;  and  for  discharg- 
ing this  duty,  he  will  not  be  entitled  to 
compensation:  Beatty  i'.  Wray,  19  Penn. 
St.  51G  ;  Brown  v.  McFarland's  Exr.,  41  Id. 
129.    And  see,  Griggs  v.  Clark,  23  Cal.  427. 

But  where  the  surviving  partner  is  in- 
solvent, and  there  is  no  partnership  fund, 
equity  will  give  a  remedy  against  the  rep- 
resentatives of  the  deceased  partner  :  Sale 
I'.  Dishman's  Exr.,  5  Leigh  548  ;  Linney's 
Admr.  v.  Dare's  Admr.  et  al.,  2  Id.  595  ; 
Emanuel  v.  Bird,  Admr.,  et  al.,  19  Ala. 
596  ;  Wilder  et  al.  v.  Keeler  et  al.,  3  Paige 
Ch.  167;  Marshall  etal.  v.  De  Groot,  1 
Caine  Cas.  122  ;  Philson  v.  Admr.  of  Bam- 
field,  1  Brev.  202  ;  Caldwell,  Admr.,  v. 
Stileman,  1  Rawle  215  ;  Southard  v  Lewis, 
4  Dana  148 ;  Hammersley  v.  Lambert  et 
al.,  2  Johns.  Ch.  508  ;  Horsey,  &c.,  v. 
Heath,  &c.,  5  Ham.  355  ;  and  this  has 
also  been  held,  where  one  was  unable  to 
obtain  satisfaction  from  the  surviving 
partner:  Voorhis  v.  Child,  17  N.  Y.  354; 
Shaw  V.  Knowles,  3  R.  I.  112.  In  some  of 
the  States,  however,  by  statute,  the  repre- 
sentatives of  a  deceased  partner  may  be 
sued,  even  when  the  surviving  partner  is 
solvent,  and  for  that  purpose  may  be 
joined  with  hira  as  defendants  :  McLain  et 
al.  V.  Carson,  Exr.,  4  Pike  164;  Maxey  v. 
Averill's  Exrs.,  2  B.  Mon.  108  ;  Ransom  v. 
Pomeroy,  Admr.,  8  Blackf.  383  ;  Brew- 
ster's Admr.  v.  Sterrett,  32  Penn.  St.  115  ; 
Moore's  Ap.,  34  Id.  411  ;  Gunter  v.  Jarvis, 
25  Texas  581  ;  or  they  may  be  sued  alone; 
and  this  has  been  held,  even  though  there 
is  an  action  for  the  same  cause  pending 
against  the  surviving  partners  :  Creswell 
et  al.,  Exrs.,  v.  Blank,  3  Grant  Cas.  320; 
and  by  a  statute  of  Tennessee,  the  doctrine 
of  survivorship  does  not  apply  to  the  case 
of  land  held  by  a  firm  :  Gaines  v.  Catron, 
1  Humph.  514. 

Where  the  executor  of  a  partner,  con- 


tinues the  business  of  his  testator,  he 
thereby  becomes  a  partner,  and  liable  as 
such,  not  in  his  representative,  but  in  his 
individual  capacity  :  Alsop  v.  Mather  et 
al.,  8  Conn.  584  ;  Egberts  et  al.  v.  Wood 
et  al.,  3  Paige  Ch.  517  ;  but  the  personal 
representatives  of  a  deceased  partner  may 
carry  on  the  business,  where  a  covenant 
to  that  effect  existed  in  the  co-part- 
nership articles,  or  he  directed  by  will 
that  it  should  be  done :  Laughiin  v 
Lorentz's  Admr.,  48  Penn.  St.  275. 

There  is  no  such  analogy  between  death 
and  insolvency,  in  cases  of  partnership,  as 
to  give  by  law  a  solvent  partner,  the  sole 
administration  of  the  assets,  where  the  ra- 
maining  partners  are  insolvent :  Hubbard 
et  al.  V.  Guild,  1  Duer  662.  See  also  Bar- 
croft  V.  Snodgrass,  1  Cold.  (Tenn.)  430. 

Real  estate,  when  purchased  with  part- 
nership funds,  and  for  partnership  pur- 
poses, is  regarded  as  partnership  property  : 
Brooke  v.  Washington,  8  Gratt.  248; 
Wheatley's  Heirs  v.  Colhoun,  12  Leigh 
272  ;  Pierce's  Admr.  v.  Triggs's  Heirs,  10 
Id.  424  ;  Whislow  v.  Chiffelle,  S.  C.  Eq. 
(Harper's)  25  ;  Edgar  v.  Donnaly  et  al.,  2 
Munf.  387  ;  Deloney  r.  Hutcheson,  2  Rand. 
183  ;  Buchan  v.  Sumner,  2  Barb.  Ch. 
166  ;  Donaldson  v.  The  Bank  of  Cape 
Fear,  1  Dev.  Ch.  106  ;  Divine,  &c.,  v. 
Mitchum,  4  B.  Mon.  489  ;  Hauft"  v.  Howard, 
3  Jones  Eq.  440';  Tillinghurst  v.  Champ- 
lin,  4  R.  I.  173  ;  Matlock  v.  Matlock,  5  Ind. 
403  ;  Willis  v.  Freeman,  35  Vt.  44  ;  Mea- 
son  V.  Kaine,  63  Penn.  St.  335  ;  and  even 
Avhen  purchased  in  the  name  of  the  part- 
ners as  tenants  in  common,  it  will,  if  for 
partnership  purposes,  be  deemed,  in  equity, 
as  partnership  estate  :  Hoxie  v.  Carr  et  al., 
1  Suran.  171  ;  Sigourney  v.  Mann  et  al.,  7 
Conn.  11  ;  Smith  v.  Tarlton  et  al.,  2  Barb. 
Ch.  336  ;  Cilley  v.  Huse,  40  N.  H.  358  ; 
Matlack  v.  James,  2  Beasley  126 ;  Buf- 
fum  V.  Buffum,  49  Maine  108  ;  Robertson 
V.  Baker,  11  Fla.  192  ;  so,  likewise,  where 
the  name  of  one  of  the  partners  only  is 
used:  Boyers  v.  Elliott,  7  Humph.  204; 
Hunt  et  al.  v.  Benson,  2  Id.  459  ;  Lacy  v. 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY. 


305 


personal  chattels  in  possession,  such  as  merchandise  or  ships,  which  were 
the  joint  property  of  the  partnership. (w)     But  this  rule  does  not  extend 


(to)  Co.  Litt.  182  a;  Kempe  v.  Andrews,  3  Lev.  290;  Rex  v.  Collector  of  Customs,  2 
M.  &  Selw.  223 ;  Buckley  v.  Barber,  6  Exch.  Rep.  164. 


Hall,  37  Penn.  St.  360  ;  Moreau  v.  Safifa- 
rans,  3  Sneed  595 ;  Jarvis  v.  Brooks,  7 
Foster  37  ;  Coder  v.  Huling,  27  Penn.  St. 
84  ;  and,  under  these  circumstances,  the 
realty  is  considered  in  equity,  as  personal 
property:  Hoxie  v.  Garret  al.,  1  Sumn.  17 1 ; 
Buck,  &c.,  V.  Winn,  &c.,  11  B.  Mon.  332; 
Boyce  v.  Coster,  4  Strobh.  Eq.  30 ;  Rice  v. 
Bernard  et  al.,  20  Vt.  479  ;  Delmonico 
V.  Guillaume,  2  Sandf.  Ch.  366  ;  Piatt  v. 
Oliver  et  al.,  3  McL.  27  ;  Andrew's  Heirs, 
&c.,  f.  Brown's  Admr.  et  al.,  21  Ala.  437  ; 
Davis  V.  Christian,  15  Gratt.  11  ;  Ludlow 
V.  Ccroper,  4  Ohio  St.  1  ;  Moderwell  v. 
MuUison,  21  Penn.  St.  257  ;  Black  v. 
Black,  15  Geo.  445  ;  Collumb  v.  Read,  24 
N.  Y.  505  ;  Bird  v.  Morrison,  12  Wis.  138  ; 
NicoU  V.  Ogden,  29  111.  323  ;  Arnold  v. 
Wainwright,  6  Minn.  358  ;  though  the 
contrary  has  been  held  in  North  Carolina  : 
Ferguson  v.  Hass,  Phill.  Eq.  113  ;  and 
may  be  taken  in  execution,  and  sold,  under 
a  writ  of  Ji  fa. :  Hunter  v.  Martin,  2  Rich- 
ard. 541 ;  but,  at  law,  real  estate  so  pur- 
chased, is  considered  as  the  several  pro- 
perty of  the  partners :  Burnside  et  al.  v. 
Marick  et  al.,  4  Mete.  537  ;  Dyer  v.  Clark, 
Admr.  et  al.,  5  Id.  562  ;  Howard  et  al.  v. 
Priest  et  al..  Id.  582  ;  Ensign  v.  Briggs,  6 
Gray  329  ;  Galbraith  v.  Gedge,  16  B.  Mon. 
631 ;  Lang  v.  Waring,  25  Ala.  625 ;  Blake 
V.  Mutter,  19  Maine  16  ;  in  which  last  case 
it  was  doubted,  whether  a  diflfereut  rule 
would  hold,  even  in  equity,  in  that  State, 
against  the  express  provisions  of  statute 
c.  35,  §  1,  which  provides,  "that  all  lands 
conveyed  to  two/)r  more  persons,  shall  be 
held  by  them  as  tenants  in  common,  and 
not  as  joint  tenants,  unless  the  convey- 
ance contain  express  words  clearly  show- 
ing a  different  intention  ;"  in  case,  too,  of 
the  death  of  one  of  the  partners,  the  legal 
title  descends  and  vests  in  his  heirs  at 
law:  Yeatman  i'.  Woods,  6  Yerg.  20  ;  An- 
drew's Heirs,  &c.,  v.  Brown's  Admrs.,  &c., 
21  Ala.  437  ;  Piper  v.  Smith,  1    Head   93  ; 


but  the  surviving  partner  has  an  equitable 
lien  thereon,  for  his  indemnity  against  the 
debts  of  the  firm,  and  the  balance  that 
may  be  due  him  :  Gray  v.  Palmer,  9  Cal. 
616  ;  and  as  the  several  property  of  each 
of  the  partners,  such  property  may  be 
taken  in  execution  at  the  suit  of  a  cred- 
itor of  one  of  the  partners,  as  to  his  share, 
but  equity  will  compel  him  to  hold  it  in 
trust,  to  be  applied,  if  necessary  to  the 
payment  of  the  partnership  claims  :  Peck 
et  al.  V.  Fisher,  7  Cush.  386;  Clagett  f. 
Kilbourne,  1  Black  (U.  S.)  346. 

In  the  absence  of  proof  that  real  estate 
had  been  bought  with  partnership  funds, 
for  partnership  purposes  ;  no  one  of  the 
joint  owners  can  bind  the  rest  by  any  con- 
tract respecting  it :  Thompson  v.  Bowman, 
6  Wall.  (U.  S.)  316. 

In  Buck,  &c.,  V.  Winn,  &c.,  11  B.  Mon. 
322,  it  was  intimated,  that  if  partnership 
funds  were  invested  in  real  estate,  not 
necessary  or  intended  to  be  used  in  the 
business  of  the  firm,  either  bought  for 
speculation  or  as  an  investment,  it  would 
be  regarded  as  partnership  assets ;  in 
New  York,  however,  it  has  been  decided, 
that  in  order  to  have  that  effect,  the  real 
estate  so  purchased  must  be  for  partner- 
ship purposes  :  Cox  v.  McBurney  et  al., 
2  Sanford  S.  C.  561  ;  and  this  has  also 
been  decided  in  the  Circuit  Court  of  the 
United  States  for  the  Eastern  District  of 
Pennsylvania,  in  the  able  opinion  delivered 
by  Judge  Washington  in  the  case  of  Phil- 
lips V.  Crammond,  2  Wash.  C.  C.  442,  in 
which  he  says,  "Crammond  purchased  a 
piece  of  ground  on  the  Schuylkill,  con- 
taining about  twenty-eight  acres,  upon 
which  he  built  a  house  for  a  country  seat, 
and  in  other  respects  improved  the  same 
at  considerable  expense,  to  which  he  gave 
the  name  of  Sedgely.  The  purchase- 
money  for  this  property,  and  what  was 
expended  in  improving  it,  was  drawn 
from  the  partnership  funds,  and  the  con- 


305 


OF    PERSONAL    ESTATE    GENERALLY. 


at  law  to  closes  in  action,  which  must  accordingly  be  sued  for  in  the 
name  of  the  survivor. (w)     In  equity,  however,  the  share  of  the  deceased 

(n)  Martin  v.  Crompe,  1  Ld.  Raym.  340  ;    s.  c.  2   Salk.  444  ;  2  Wms.  Saund.  117   b, 
n.  (2). 


yej-ance  was  made  to  Cammond  alone  .  .  . 
The  general  principle  is,  that  if  a  receiver, 
executor,  factor,   or  trustee,  lays  out  the 
money  which    he   holds    in  his    fiduciary 
character,   in  the  purchase    of  real    pro- 
perty, and  take  the  conveyance  to  himself, 
he  who  is  entitled  to   the  money,  which 
has  been  thus   invested,   may  follow  the 
same,  and  consider  the  purchase  as  made 
for  his  use,  and  the  purchaser  a  trustee  for 
him.     Upon  the    same   principle,   I   con- 
ceive that  a  resulting  trust  would  arise  to 
a  partnership  concern,  in  lands  purchased 
by  one  of  the  partners,  and  paid  for  out  of 
the  joint  funds.  .  .  .  But   this    species    of 
resulting  trust  is  open  to  certain  qualifica- 
tions,   amongst   which    it    is    proper    to 
notice  the  following,  viz.,  that  the  person 
whose   money  was  invested  in  the  pur- 
chase, is  not  obliged  to  take  the  land,  and 
to  consider  the  purchaser   as  liis  trustee, 
but  may  elect  to  treat  him  as  his  debtor, 
and  to    claim  the  money  instead  of  the 
property.     As  i?^  consequence   of  this,  and 
because  the  claim  to   a  resulting  trust  is 
merely   that  of  an  equity,,  founded   upon 
the   presumptive  interest  of  the  parties, 
that    equity   may   be    rebutted,   even   by 
parol  evidence  and  circumstances  to  de- 
feat it.  .  .  .  This  qualification  of  the  doc- 
trine seems  to  be  decisive  of  the  present 
case.  ..  .   .  Nothing   can   be   more   clear, 
than  that  the  property  in  q,uestion,  was 
purchased  and  improved  for  the  sole  and 
separate  use  of  Wm.  Crammond,  and  that 
his  partners  so  understood  and  assented 
to    it.     The    circumstances    to    establish 
these  facts  are  conclusive.     The  nature  of 
the  property, — a  country-seat,  improved  at 
an  immense  expense,  in  the  vicinity  of  the 
place  at  which  the  purchaser  alone  resided, 
capable   of  affording  to   him   an    elegant 
luxury,  but  totally  useless  and  unproduc- 
tive to  the  concern,  aud   out  of  the  view 
and  scope  of  the  business  in  which  they 


were  engaged."  But  in  Pennsylvania,  in 
the'case  of  Erwin's  Ap.,  39  Penn.  St.  535, 
it  was  decided  that  land  purchased  in  the 
name  of  one  of  the  members  of  a  partner- 
ship, but  paid  for  with  the  money  of  the 
firm,  and  used  by  the  firm,  though  not 
necessary  for  the  partnership  purposes, 
and  not  used  as  intended,  was  partnership 
property. 

In  the  same  State  it  has  been  held,  that 
where  partners  wish  to  make  real  estate 
partnership  property,  as  to  subsequent 
purchasers  without  notice,  or  judgment 
creditors,  they  must  do  it  by  some  deed^ 
or  instrument  of  writing,  recorded  :  Ridg- 
way's  Appeal,  15  Penn.  St.  177  ;  Lancas- 
ter Bank  v.  Myley,  I  Id.  544  ;  Hale  v.  Hen- 
rie,  2  Watts  143  ;  Lefevre'&  Ap.,  28  Leg. 
Intel.  412.  In  Patterson  v.  Brewster,  4  Edw. 
Ch.  352,  it  was  ruled,  that  there  cannot 
be  a  partnership  in  buying  and  selling 
real  estate  ;  but  the  contrary  has  been 
decided  in  Kramer  v.  Arthurs  et  al.,  1 
Penn.  St.  171  ;  Brady  et  al.,  Exrs.,  v.  Col- 
houn  et  al.,  Admrs.,  1  Penna.  R.  140 ;  Dud- 
ley V.  Littlefield,  21  Maine  422  ;  River 
Whaling  Co.  v.  Borden,  10  Cush.  458. 

Where  real  estate  is  considered  partner- 
ship assets,  judgments  for  partnership 
debts  will  be  payable  out  of  the  proceeds, 
in  preference  to  judgments  obtained 
against  the  partners  individually  :  Over- 
holtz's  Appeal,  12  Penn.  St.  222  ;  Divine, 
&c.,  V.  Mitchura,  4  B.  Mon.  488  ;  North 
Penna.  Coal  Co.'s  Ap.,  45  Penn.  St.  181  ; 
a  purchaser,  however,  at  sheriff's  sale, 
without  notice  of  the  partnership  claim, 
will  hold  against  the  creditors  of  the  firm  : 
Buck,  &c.,  V.  Winn,  &c.,  11  B.  Mon.  322  ; 
and  the  same  principle  seems  to  have 
ruled  the  case  of  McDerraot  v.  Laurence,  7 
S.  k  B.  438,  which  decided,  that  where 
real  estate  was  taken  by  partners  on 
ground-rent,  and  buildings  erected  thereon, 
for  the  purpose  of  carrying  on  glass-works. 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY.  305 

partner,  botli  in  the  choses  in  possession  and  in  action  belonging  to  the 
partnership,  devolves  on  his  executors  or  administrators.  The  conse- 
quence is  that,  though  the  choses  in  action  must  be  sued  for  by  the  sur- 
viving partner,  he  will  be  a  trustee  of  the  share  of  the  deceased  partner 
for  his  executors  or  administrators. (o)  The  same  rule  is  applied  in 
equity  even  to  real  estate  purchased  for  the  purposes  of  a  trading  part- 
nership,(j»)  and  conveyed  to  the  partners  as  joint  tenants  in  fee.  On  the 
decease  of  any  of  them,  equity  holds  the  survivors  to  be  trustees  of  the 
share  of  the  deceased  for  his  executors  or  administrators  as  part  of  his 
personal  estate. (5') 

Indeed,  as  a  general  rule,  joint  ownership  is  not  *favored  in  r*oQ(^-| 
equity,  on  account  of  the  right  of  survivorship  which  attaches  to 
it.(r)  If  therefore  two  persons  advance  money  by  way  of  mortgage  or 
otherwise,  and  take  the  security  to  themselves  jointly,  and  one  of  them 
die,  the  survivor  will  be  a  trustee  in  equity  for  the  representatives  of  the 
deceased,  of  the  share  advanced  by  him.(s)  And  when  the  intention  is 
that  the  survivor  should  receive  the  whole,  a  declaration  should  be  in- 
serted that  his  receipt  alone  shall  be  a  sufficient  discharge  for  the  money 
secured.(<) 

An  ownership  in  common  (or,  as  it  is  usually  styled  in  analogy  to  real 
estate,  a  tenancy  in  common)  of  chattels  may  arise  either  from  the  sever- 
ance of  a  joint  ownership,  or  from  a  gift  to  two  or  more  to  hold  in  com- 
mon.(i*)  As,  however,  a  chose  in  action  is  inalienable  at  law,  a  joint 
ownership  of  a  chose  in  action  cannot  be  severed  at  law  by  either,  or 

(0)  Jeffreys  v.  Small,  1  Vern.  217;  Lake  v.  Craddock,  3  P.  Wms.  158. 

(p)  Randall  i-.  Randall,  1  Sim.  271. 

(q)  Phillips  V.  Phillips,  1  Myl.  &  K.  649,  663  ;  Broom  v.  Broom,  3  Myl.  &K.  443  ;  Morris 
V.  Kearsley,  2  You.  &  Col.  139  ;  Bligh  v.  Brent,  2  You.  &  Col.  258  ;  Houghton  v.  Houghton, 
11  Sim.  491 ;  Custance  v.  Bradshaw,  4  Hare  315,  322  ;  Darby  «Darby,  3  Drew.  495  ;  see 
Cookson  V.  Cookson,  8  Sim.  529. 

(r)  2  Atk.  55  ;  2  Ves.  sen.  258. 

(s)  Petty  V.  Styward,  1  Ch.  Rep.  57  ;   1  Eq.  Ca.  Ab.  290. 

{t)  See  Principles  of  the  Law  of  Real  Property  342,  1st  ed.  ;  343,  2d  ed. ;  355,  3d 
ed. ;  361,  4th  ed. ;  372,  5th  ed. ;  394,  6th  ed. ;  401,  7th  ed. :  420,  8th  ed. 

(m)  Litt.  sect.  321. 

which  was  subsequently  mortgaged  by  one  owned  by  the  partners  after  the   payment 

partner,  without  notice  to  the  mortgagee  of  all  the  debts  of  the  firm,  and  the  adjust- 

of  partnership    debts    then    existing,    the  ment  of  all  the  partnership   equities,  will 

property  was  to  be  considered  as  between  be  treated  as  real  estate  :  Buckley  v.  Buck- 

the  mortgagee  and  partnership  creditors,  ley,    11    Barb.   44;  Buchan  v.   Sumner,    2 

as    real    estate,    and    liable    in    the    first  Barb.    Ch.     166  ;    Wilcox    v.    Wilcox,    13 

instance  to  the  mortgage.     The  real  estate  Allen  252. 


306  OF    PERSONAL    ESTATE    GENERALLY. 

even  by  both,  of  the  joint  owners.  Thus  in  case  of  the  bankruptcy  of  a 
joint  creditor,  by  which  all  his  estate  becomes  vested  in  his  assignees,  an 
action  against  the  debtor  must  be  brought  in  the  joint  names,  formerly 
of  the  assignees,  and  now  of  the  creditors'  trustees  and  the  other  joint 
creditors. (v)  And  if  two  joint  creditors  should  become  bankrupt,  the 
action  must  be  brought  in  the  joint  names,  formerly  of  the  assignees,  and 
noAV  of  the  creditors'  trustees  of  both  of  them.{w)  A  tenancy  in  common 
cannot  in  fact  exist  at  law  of  a  chose  in  action.  A.  may  owe  20Z.  to  B.  and 
C.  jointly,  or  he  may  owe  10?.  toB,  and  107.  to  C. ;  but  he  cannot  owe  20?.  to 
B.  and  C.  in  common.  If  each  has  a  several  cause  of  action,  each  must  sue 
„  ^^  *separately.  In  equity,  however,  the  case  is  different.  Though 
'-  B.  and   C.   are  joint   owners  at  law,   in  equity   they  may   be 

owners  in  common ;  and  on  the  decease  of  either  of  them,  his  share  may 
in  equity  belong  to  his  representative,  instead  of  accruing  beneficially 
to  his  companion.  And  with  regard  to  letters-patent,  it  appears  that 
even  at  law,  they  may  be  the  subject  of  an  ownership  in  common,  and 
that  the  assignee  of  an  undivided  share  may  alone  sue  for  an  infringe- 
ment of  that  part  of  the  patent,  without  joining  the  persons  interested  in 
the  remaining  shares. (.r)  And  one  owner  in  common  of  letters-patent 
can  work  the  patent  on  his  own  account,  without  the  concurrence  of  the 
othcrs.(?/y  In  deciiling  whether  a  tenancy  in  common  has  been  created 
by  deed,  there  is  very  seldom  any  difficulty.  But  in  Avills,  where  greater 
indulgence  is  given  to  informal  words,  the  rule  is,  that  any  words  which 
denote  an  intention  to  give  to  each  of  the  legatees  a  distinct  interest  in 
the  subject  of  gift,  will  be  sufficient  to  make  them  tenants  in  common. 
Thus  a  gift  by  will  to  two  or  more  persons  "equally  to  be  divided  be- 
tween them, "(2)  or  simply  "between  them,"(a)  or  "in  joint  and  equal 
proportions,"(6)  or  "  equally,"((?)  or  "  respectively, "(c?)  or   "to  be  en- 


(v)  Thomason  v.  Frere,  10  East  418.  See  stat.  32  &  33  Vict.  c.  71,  s.  105,  and  the 
repealed  stat.  12  &  13  Vict.  c.  106,  s.  152,  repealing  stat.  5  &  6  Vict.  c.  122,  s.  31. 

(w)  See  Hancock  v.  Heywood,  3  Term  Rep.  433. 

(z)  Dunnicliff  y.  Mallet,  7  C.  B.  N.  S.  209  (E.  C.  L.  R.  vol.  97)  ;  Walton  v.  Lavater,  8 
C.  B.  N.  S.  162  (E.  C.  L.  R.  vol.  98). 

(y)  Mathers  v.  Green,  L.  C.  11  Jur.  N.  S.  845. 

(2)  Blisset  V.  Cranwell,  1  Salk.  226  ;  Phillips  v.  Phillips,  2  Vern.  430  ;  1  Eq.  Ca.  Abr. 
292,  pi.  6;  1  P.  Wms.34. 

(a)  Lashbrook  v.  Cock,  2  Mer.  70.  {/>)  Ettricke  v.  Ettricke,  2  Anibl.  056. 

(c)  Lewen  v.  Dodd,  Cro.  Eliz.  443.  (d)  1  Atk.  580  ;  1  Ves.  sen.  104. 

1  Where  there  has  been  an  assignment  patentee,  become  joint  owners  of  the  pat- 
of  an  undivided  part  of  the  whole  original  ent:  Potter  v.  Holland,  4  Blatch.  C.  C. 
patent,  the  assignee  of  such  part,  and  the     206.     And  see  ante,  p.  244,  note. 


OF   JOINT    OWNERSHIP   AND    JOINT    LIABILITY.  307 

joyed  alike, "(e)  will  make  such  persons  tenants  in  common,  and  not 
joint  tenants,  as  they  would  have  been  without  the  insertion  of  such 
words.  In  this  respect  the  rule  is  the  same  *whether  the  sub-  r*qAo-i 
ject  of  the  devise  or  bequest  be  real  or  personal  estate.(/)  -' 

Owners  in  common  or  personal  estate,  like  tenants  in  common  of 
lands,  have  merely  a  unity  of  possession :  the  interest  of  one  may  be 
larger  or  smaller  than  that  of  the  other,  one  having,  for  instance,  one- 
third,  and  the  other,  two-thirds  of  the  property.  So  the  title  need  not 
be  the  same,  as  one  may  have  been  originally  a  joint  tenant  with  a  third 
person,  who  may  have  severed  the  joint  tenancy  by  assigning  his  moiety 
to  the  other.  The  right  of  survivorship,  which  springs  from  a  unity 
of  interest  and  title,  has  accordingly  no  place  between  owners  in 
common.(^) 

Connected  with  the  subject  of  joint  ownership  is  that  of  joint  liability. 
Two  or  more  persons  may  be  jointly  liable  to  the  same  debt  or  demand. 
In  a  joint  bond,  the  obligors,  according  to  the  usual  form,  bind  them- 
selves, their  heirs,  executors  and  administrators  jointly;  and  in  a  joint 
covenant,  they  in  like  manner,  covenant  for  themselves,  their  heirs,  exec- 
utors and  administrators  jointly.  In  every  case  of  joint  liability,  each 
is  liable  for  the  whole  debt,(7i)  yet  they  are  all,  like  joint  owners,  con- 
sidered  as  one  person.^     They  must  accordingly   all  be  sued  together 

(e)  Loveacres  d.  Mudge  v.  Blight,  Cowp.  352. 

(/)  See  2  Jarra.  Wills,  161  et  seq.  1st  ed.  ;  211,  2d  ed.  ;  231,  3d  ed. 

(^r)  Litt.  sect.  321.  {h)  1  B.  &  Aid.  35. 

1  Whether  a  contract   be  joint,  or  joint  those   bound:   Ward   v.  Johnson,- 13  Mass- 

and   several,   each   of  the    contractors    is  148 ;    Crane,  Adrar.,    v.    Ailing,  3    Green 

liable  for   the  whole  debt :   Ward  y.  John-  423;   Dudley   (Geo.)   423;  Merrick  v.  The 

son  et  al^,  13  Mass.  148  ;  McMahan  v.  Mur-  Bank  of  the  Metropolis,  8  Gill  61 ;   Morris 

phy,    1   Bailey   535  ;   though   it  has    been  v.  McAnally,  3  Cold.  (Tenn.)  304  ;  Kent  v. 

held   in   a  joint  covenant,  to   secure    the  Wells,  21  Ark.   411;   and  the   rule  is  the 

payment  of  rent,  that  the    sureties  could  same  as  to  joint  tort  feasors  :    Buckler  v. 

not  be  sued  without  joining  the  principal :  Lambert,    4  Mete.    (Ky)    330;    Laverty  v. 

Ciij   of  Phila.  v.  Reeves   et  al.,  48   Penn.  Vanarsdale,  65  Penn.  St.  507;  but  the  suit 

St.  472  ;  for  persons  jointly  liable  must  all  must  be  against  one,  or  all,  and  cannot  be 

be   made  defendants  in  an  action  to  en-  against  any  intermediate  number:  Minor 

force  the.   liability  :    Keller  v.   Blasdel,    1  et  al.  v.  The  Mechanics'  Bank  of  Alexan- 

Nev,  491  ;   Beale  v.  Trudeau,  18  La.  Ann.  dria,  1  Peters  73;  and  the  personal  repre- 

129  ;  though  the  contrary  has  been  holden  sentatives    of  one    deceased,    are   equally 

under  a  statute  of  Iowa  :  Ryerson  v.  Hen-  liable    with    their    testator    or    intestate  : 

drie,  22  Iowa  480  ;   and  where   an  obliga-  Bulkley   v.   Wright    et  al.,  Exrs.,   2  Root 

tiou  is  joint  and  several,  proceedings  may  70 ;  Miller  v.  Reed,  3  Grant  Cas.  52.     So, 

be  instituted  against  either  one,  or  all,  of  the  fact  of  one  of  several  joint  and  several 


308 


OF    PERSONAL    ESTATE    GENERALLY. 


during  their  joint  lives  :{i)  and  a  release  to  one  of  them  will  discharge 
them  all.(y)  It  is,  however,  provided  by  the  Bankruptcy  Act,  1869, 
that  the  order  of  discharge  of  a  bankrupt  shall  not  release  any  person 
who  at  the  date  of  the  order  of  adjudication  was  a  partner  with  the  bank- 
r*oAq-|  rupt,  or  was  jointly  bound,  or  *had  made  any  joint  contract  with 
*-  "^  '  -^  him.(y^y  And  if  any  person  jointly  liable  upon  any  simple  con- 
tract shall  be  discharged  by  the  Statute  of  Limitations,  but  his  co-con- 
tractor or  co-contractors  shall  be  liable  by  virtue  of  a  new  acknowledgment 
or  promise,  judgment  may  be  given  and  costs  allowed  against  the  latter 
person  or  persons  on]y.{l}-  And  if  such  person  or  persons  shall  plead  in 
abatement  that  the  other  ought  to  be  jointly  sued,  and  it  shall  appear  that 
he  was  discharged  by  the  statute,  the  issue  joined  on  such  plea  shall  be 
found  against  such  person  or  persons  pleading  the  same.(w)     The  fact  of 

(?)  1  Wms.  Saund.  291  b,  n.  (4). 

(/)  2  Rol.  Abr.  412  (G),  pi.  4;  Clayton  v.  Kynaston,  2  Salk.  574;  2  Wms.  Saund.  47 
gg,  n.  (1) ;  Warwick  v.  Richardson,  14  Sim.  281. 

(k)  Stat.  31  &  32  Vict.  c.  71,  s.  50  ;  ante,  p.  158.  The  former  enactment  was  stat.  24 
&  25  Vict.  c.  134,  s.  163,  repealing  stat.  12  &  13  Vict.  c.  106,  s.  200,  repealing  stats.  6 
Geo.  IV.  c.  16,  s.  121,  and  5  &  6  Vict.  c.  122,  s.  37,  to  the  same  effect. 

(Z)  Stat.  9  Geo.  IV.  c.  14,  s.  1.  (m)  Sect.  2. 

covenantors    having  been    sued,  will  not  thereto,  such  judgment  shall  not  be  a  bar 
prevent  a  subsequent  action  as  to  another,  to  a  recovery   in  any  subsequent  suit  or 
or   all   jointly,    provided,    of  course,    the  suits,  against  any  person  or  persons,  who 
previous  action  has  not  resulted  in  a  satis-  might  have  been  joined   in  the  action  in 
faction  of  the  demand :  Ward  v.  Johnson  which    such     judgment    was      obtained, 
et  al.     13    Mass.    148  ;    Sheeby   v.  Mande-  whether  the  same  shall  be  obtained  ami- 
ville,  5  Cranch  254;  Townsend  v.  Riddle,  cably  or  by  adversary  process."      Purd. 
2  N.  H.   448  ;   Anderson   v.  Neef  et   al.,  32  Dig.  (1861),  p.  578,  sec.  38. 
Penn.   St.  379  ;   White  v.  Smith  et  al.,  33  i  See  ante,  p.  132,  note  2  ff. 
j(j_  ]^8G.  *  One  of  several  joint  contractors,  can- 
In  the  case  of  Willings  et  al.  v.  Conse-  not   by   his  admissions    revive    the    lia- 
qua,   Peters  C.   C.  301  ;    it  was  held,  that  bility  of  the  other  obligors,  extinguished 
"  where  two  or  more   persons  are  liable  by  the  statute   of  limitations,  though   he 
for  a  simple  contract  debt,  a  judgment  ob-  may   his    own:    Mott  v.   Petrie,    &c.,    15 
tained   against  one  of  them,  is   an  extin-  Wend.  317  ;  Bowdre  «.  Hampton,  6  Rich- 
guishment    of    the    claim    on    the    other  ard.  208.     But  the   acknowledgment  of  a 
debtors,  in   the  same   manner,  as  a  bond,  debt,  by  one  partner,  after  a  dissolution  of 
given  by  one  of  two  persons  liable  on  a  the  firm,  is  sufficient  to  take  a  case  out  of 
simple  contract,  is  an  extinguishment  of  the  statute  as  regards  the  others:  Smith, 
the  original  debt."     By  a  statute  of  Penn-  Admr.,  v.  Ludlow  et  al.,  6  Johns.  267  ;  but 
sylvania,  however,  it  is  now  enacted,  that  see  to  the  contrary,  Kauffman  v.  Fisher,  3 
"  where  a  judgment  shall  be  hereafter  re-  Grant  Cas.  302  ;  and  the  mere  acknowledg- 
covered  against,  one   or  more   of  several  ment  by  one,  is  not  considered  a  sufficient 
copartners,  or  joint  and  several  obligors,  proof  of  an    existing    debt,   to    bind    the 
promisers,    or    contractors,    without    any  other :  Hackley  i).  Patrick,  3  Johns.  536  ; 
plea  in  abatement,  that  all  the  parties  to  Burns  v.  McKenzie,  23  Cal.  101  ;  Thomp- 
the  instrument  or  contract  on  which  the  son  v.  Bowman,  6  Wall.  U.  S.  316;  Conery 
suit   is    founded,    are    not    made    parties  v.  Hays,  19  La.  Ann.  325. 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY. 


309 


one  joint  debtor  being  beyond  the  seas  at  the  time  when  the  cause  of  action 
accrues,  will  not  deprive  the  others  of  the  benefit  of  the  Statutes  of  Limita- 
tion ;  and  the  recovery  of  judgment  against  any  who  were  not  beyond  seas, 
will  be  no  bar  to  an  action  against  the  absent  debtors  on  their  return.  And 
for  this  purpose  no  part  of  the  United  Kingdom,  nor  the  Isle  of  Man,  nor 
the  Channel  Islands,  are  to  be  considered  as  beyond  seas.(w)  After  the 
decease  of  any  one  joint  debtor  the  survivors  or  survivor  of  them  may 
still  be  sued  for  the  whole  debt,  as  though  the  deceased  had  no  share  in 
it,(o)  and  the  estate  of  the  deceased  will  be  discharged  from  all  liability 
both  at  law  and  in  equity. (jo)^  So  if  a  judgment  be  obtained  against  two 
or  more  jointly,  and  one  of  them  die,  the  estate  of  the  survivor  or  sur- 
vivors, whether  real  or  personal,  will  be  exclusively  liable  to  be  taken  in 


execution ;    although  *the  real  estate  of  the  deceased,  having 


[*310] 


formerly  been  bound  from  the  date  of  the  judgment,  was  until 
recently  liable  to  contribute  equally  with  the  real  estate  of  the  survivors. (g-) 

(n)  Stat.  19  &  20  Vict.  c.  97,  ss.  11,  12. 

(o)  Richards  v.  Heather,  1  B.  &  Aid.  29. 

Ip)  Richardson  v.  Horton,  6  Beav.  185  ;  Wilmer  v.  Currey,  2  De  G.  &  Sm.  347  ; 
Crossley  v.  Dobson,  2  De  G.  &  Sm.  486  ;  Other  v.  Iveson,  3  Drew.  177. 

(q)  3  Rep.  14  b  ;  Smarte  v.  Edsun,  1  Lev.  30 ;  2  Wms.  Sauud.  51.  See  now  stat.  27 
&  28  Vict.  c.  112;  Principles  of  the  Law  of  Real  Property,  p.  82,  7th  ed. ;  83,  8th  ed. 


1  In  all  cases  of  joint  obligation,  the 
surviving  debtor  is  the  party  liable,  who 
must  be  sued  alone,  without  being  joined 
with  the  representatives  of  the  decedent  : 
Hott  V.  Petrie,  &c.,  15  Wend.  317  ;  Water's 
Representatives  v.  Riley's  Admr.,  2  Har.  & 
G.  305  ;  Preston  v.  Preston,  1  Har.  &  Johns. 
366  ;  Murphy's  Admrs.  v.  The  Branch  Bank 
of  Alabama,  5  Ala.  421 ;  Boykin  v.  Wat- 
son's Admrs.,  3  Brev.  260;  Poole  v.  Mc- 
Leod,  1  Smed.  &  Mar.  391  ;  The  State 
Treasurer  v.  Friott  et  al.,  Admrs.,  24  Vt. 
134 ;  Bradley  v.  Burwell,  3  Denio  61  ; 
Teller  v.  Wetherell,  9  Mich.  464  ;  Black  v. 
Struthers,  11  Iowa  459;  Roth  well  v. 
Dewees,  2  Black  (U.  S.)  613;  Hoskinson 
V.  Eliot,  62  Penn.  St.  393.  But  by  statutes 
of  Tennessee,  Massachusetts,  Mississippi, 
Ohio,  and  North  Carolina,  the  representa- 
tives of  a  deceased  obligor  may  be  joined 
in  an  action  against  the  survivor  :  Perkins 
V.  Hadley,  4  Hayw.  152  ;  Claribon  v. 
Goodloe,  Cook  391  ;  Simpson  et  al.  v. 
Young  et  al.  2  Humph.  514  ;  Foster  et  al. 
V.  Hooper,  Admr.,  2  Mass.  572  ;  Henderson 
et   al.   V.   Talbert,  5    Smed.   &   Mar.    109 ; 


Smith  V.  Fagan  et  al.,  2  Dev.  298  ;  Taylor 
V.  Taylor,  5  Hump.  110  ;  Burgoyne  v. 
0.  Life  Ins.  and  Trust  Co.,  5  Ohio  St. 
586;  and  in  Pennsylvania  an  action  may 
be  brought  against  the  executors  of  a  de- 
ceased partner  :  Moore's  Ap.,  34  Penn.  St. 
411  ;  though  they  cannot  be  joined  with  the 
surviving  partners :  Hoskinson  v.  Eliot, 
62  Id.  393.     See  also  ante,  p.  305,  note. 

In  Georgia,  in  an  action  against  joint 
contractors,  the  plaintiff  has  his  election 
in  case  of  the  death  of  one  of  them,  to 
suggest  the  death  of  record,  and  to  pur- 
sue the  survivors,  or  to  join  the  represen- 
tatives of  the  decedent ;  but  having  elected 
to  take  the  former  course,  he  cannot  after- 
wards be  allowed  to  join  the  legal  repre- 
S'entatives  of  the  decedent  with  the  survi- 
vors: Harrell  v.  Park,  32  Ga.  555;  but  see, 
Pearce  v.  Bruce,  38  Id.  444. 

Some  few  cases  also  hold,  that  in  equity, 
a  bond  will  be  treated  as  several,  so  as  to 
make  the  representatives  of  a  deceased 
obligor,  proportionably  liable  :  Smith  et  al., 
Exrs.,  W.Martin  etal.,  Exrs.,4  Desauss.  148  ; 
Haggins  v.  Peck,  Admr.,  10  B.  Mon.  217. 


310  OF    PERSONAL    ESTATE    GENERALLY. 

A  liability,  however,  may  be  both  joint  and  several  at  the  same  time ; 
and  as  such  a  liability  is  more  beneficial  to  the  creditor,  it  is  more  usual 
than  a  liability  which  is  simply  joint.  A  joint  and  several  bond  has 
hitherto  run  in  this  form : — "  for  which  payment  to  be  well  and  truly 
made,  we  bind  ourselves,  and  each  of  us,  and  the  heirs,  executors  and 
administrators  of  us  and  of  each  of  us,  jointly  and  severally  :"  or  if  there 
were  a  larger  number  of  obligors,  say  five,  the  better  form  was : — "  for 
which  payment  to  be  well  and  truly  made,  we  bind  ourselves,  and  each 
of  us,  and  any  two,  three,  or  four  of  us,  and  the  heirs,  executors  and 
administrators  of  us,  and  of  each  of  us,  and  of  any  two,  three,  or  four 
of  us,  jointly  and  severally."  But  now,  as  we  have  seen,(r)  all  mention 
of  heirs,  executors  and  administrators  may  be  omitted.  In  the  case  of  a 
joint  and  several  bond,  an  action  may  be  brought  against  all  the  obligors, 
or  against  any  one,  two,  three  or  four  of  them  whom  the  oWigee  may 
select ;  otherwise  he  must  have  sued  either  all  of  them  jointly,  or  any  one 
of  them  singly.(s)  A  joint  and  several  covenant  was  usually  in  this 
form : — "  And  the  said  A.  B.  and  C.  D.  do  hereby,  for  themselves, 
their  heirs,  executors  and  administrators  jointly,  and  each  of  them 
doth  hereby  for  himself  respectively,  and  for  his  respective  heirs, 
executors  and  administrators,  covenant,"  &c. ;  or  if  there  were 
more  than  two  eovenantors,  the  better  form  was,  for  the  reason 
r*3in  *^^<5'^6  given,  "And  the  said  A.  B.,  C.  D.,  E.  F.  and  G.  H., 
do  hereby,  for  themselves,  their  heirs,  executors  and  administra- 
tors jointly,  and  any  two  or  three  of  them,  do  hereby,  for  themselves, 
their  heirs,  executors  and  administrators  jointly,  and  each  of  them  doth 
hereby  for  himself  respectively,  and  for  his  respective  heirs,  executors 
and  administrators,  covenant,"  <fec.  In  all  cases  of  joint  and  several 
liability,  each  party  is  individually  liable,  and  may  be  sued  alone  for  the 
whole  debt,  or  if  the  creditor  please,  he  may  sue  them  all  jointly.  In 
consequence  of  the  joint  liability,  a  release  of  one  of  the  debtors  will 
discharge  them  all ;  and,  as  they  are  all  discharged,  the  creditor  will 
thenceforth  be  unable  even  to  sue  any  of  them  severally. (<)*     As,  however, 

(r)  Ante,  pp.  106,  107. 

(«)  Per  BuUer,  J.,  in  Streatfield  v.  Halliday,  3  Term  Rep.  782. 

(t)  2  Rol.  Abr:  412  (G),  pi.  5  ;  Clayton- 1).  Kynaston,  2  Salk.  574  ;  Nicholson  v.  Revill, 
4  Ad.  &  E.683  (E.  C.  L.  R.  vol.  31) ;  s.  c.  N.  &  M.  192  ;  Evans  v.  Bremridge,  2  Kay  & 
John.  174  ;  affirmed,  8  De  G.,  M.  &  G.  100. 

1  That  the  release  of  one  of  several  be  easily  overthrown  :  The  American  Bank 
joint,  or  joint  and  several  debtors,  will  v.  Doolittle,  14  Pick.  123  ;  Ward  v.  John- 
operate  as  a  release  of  all,  is  doubtless  too  son  et  al.,  13  Mass.  148  ;  Brown  v.  Marsh, 
firmly  established  as  a  legal   doctrine  to  7  Vt.  320  ;  Bank  of  Catskill  v.  Messenger 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY. 


311 


the  several  liability  is  distinct  from  the  joint,  it  is  competent  to  the  cred- 
itor, in  releasing  one  of  the  debtors,  expressly  to  reserve  his  remedy 


et  al.,  9  Cowen  3Y ;  Harrison  v.  Close  et  al., 
2  Johns.  448  ;  Rowlej'  v.  Stoddard,  1  Id. 
207 ;  Barrington  et  al.  v.  The  Bank  of 
"Washington,  14  S.  &  R.  405  ;  United  States 
V.  Thompson,  Gilp.  614;  Willings  et  al.  i>. 
Consequa,  Peters  C.  C.301 ;  "Walker  v.Uc- 
Culloch,  4  Greenl.  421  ;  Abel  v.  Forgue,  1 
Root  502  ;  Crane,  Admr.,  v.  Ailing,  3 
Green  423  ;  Averill  v.  Lyman,  18  Pick. 
352;  Goodnow  v.  Smith  et  al..  Id.  414; 
Bronson  et  al.  v.  Fitzhugh  et  al.,  1  Hill 
185  ;  Clagett  et  al.  v.  Salmon,  5  Gill  & 
Johns.  315  ;  McAUester  etal.v.  Sprague  et 
al.,  34  Maine  296  ;  Kirby  v.  Taylor  et  al., 
6  Johns.  Ch.  242;  Frink  v.  Green,  5  Barb. 
455  ;  Bozeman  v.  The  State  Bank,  2  Eng. 
328  ;  HofFman  v.  Dunlop  et  al.,  1  Barb. 
185  ;  Benjamin  et  al.  v.  McConnell,  et  al.,  4 
Gilm.  536  ;  Gray's  Exrs.  v.  Brown,  22  Ala. 
262  ;  Taylor  v.  Gallaud,  3  Iowa  17  ;  Booth 
V.  Campbell,  15  Md.  569;  Elliott  v.  Hol- 
brook,  33  Ala.  659  ;  Cornell  v.  Hasten,  35 
Barb.  157;  Evans  v.  Pigg,  3  Cold.  (Tenn.) 
395  ;  and  it  seems  to  have  been  determined 
upon  the  principle,  that  whether  the  obli- 
gation be  joint,  or  joint  and  several,  the 
debt  is  entire,  "  and  when  once  satisfied  or 
released,  can  no  longer  be  enforced  against 
any  party  to  it :"  Wiggin  v.  Tudor  et  al., 
23  Pick.  444 ;  but  it  may  well  be  doubted 
whether  the  case  of  Burson  v.  Kincaid,  3 
Penna.  R.  57,  which  decides  that  the  release 
of  one  joint  co-obligor  is  a  release  of  all, 
but  a  release  of  an  obligor  in  a  joint  and 
several  obligation  is  not  a  release  of  all,  is 
not  more  in  accordance  with  general  prin- 
ciples of  law.  The  reasoning  of  Judge 
Kennedy  in  that  case,  is  certainly  entitled 
to  very  great  respect.  "In  the  abstract," 
he  says,  "  it  is  certainly  true,  and  the  prin- 
ciple of  law  well  settled,  that  if  a  creditor 
release  one  of  two  joint  debtors,  whether 
they  be  indebted  upon  a  simple  contract, 
bond,  or  judgment,  it  will  also  be  a  dis- 
charge of  the  other  from  the  debt.  Why 
is  it  so  ?  Because  otherwise  the  whole 
burden  of  the  debt  would  be  thrown  upon 
one  of  theip,  instead  of  both,  which  would 


be  directly  contrary  to  their  undertaking 
and  contract.  Upon  the  same  principle, 
it  has  been  held,  that  if  the  obligee  in  a 
bond,  given  to  him  by  two  or  more  jointly, 
tear  off  the  seal  of  one  of  the  joint  obli- 
gors, or  in  any  manner  cancel  the  bond  as 
to  one  of  them,  it  discharges  all  the  rest. 
It  was  in  its  concoction  the  joint  bond  of 
the  whole  ;  but  the  moment  it  is  cancelled 
by  the  obligee  as  to  one  of  the  obligors,  it 
ceases  to  be  the  bond  or  deed  of  all ;  in 
short,  it  ceases  to  be  the  same  bond,  if 
bond  at  all  it  can  be  called.  By  the  orig- 
inal contract  under  which  it  was  given,  it 
was  agreed,  and  made  to  be,  the  joint  ob- 
ligation of  all ;  and  without  a  new  agree- 
ment between  the  same  parties,  it  cannot 
be  changed,  and  made  a  bond  singly  of 
any  one  or  more  of  them,  short  of  the 
whole  number,  without  their  consent. 
But  the  obligee  or  covenantee  may  release 
one  of  two  several  obligors  named  in  a 
bond,  or  one  of  two  several  covenantors 
in  a  deed,  or  cancel  the  bond  or  deed  as  to 
one,  by  tearing  off  his  seal,  without  the 
consent  of  the  other,  and  for  this  reason 
too,  that  it  does  not  increase  the  responsi- 
bility of  the  other  obligor  or  covenantor, 
or  change  in  any  manner  the  nature  of  his 
obligation  or  covenant.  It  was  the  bond 
or  deed  of  each  singly  before,  and  the  ob- 
ligee or  covenantee  had  a  right  to  look  to 
either  singly  for  the  fulfilment  of  it,  and 
the  one,  therefore,  can  in  nowise  be  in- 
jured, by  cancelling  the  bond  or  deed  as  to 
the  other." 

Since  the  above  decision  was  made,  it 
has  been  enacted  by  the  legislature  of  the 
same  state,  that  when  a  compromise  or 
composition  is  made  with  an  individual 
joint  debtor,  it  shall  not  be  so  construed 
as  to  discharge  the  other  joint  debtors, 
nor  shall  it  impair  the  right  of  the  cred- 
itor to  proceed  against  such  of  the  joint 
debtors  as  have  not  been  discharged : 
Purd.  Dig.  Suppl.  (1871),  p.  1283,  sees. 
3  and  5  ;  and  in  Burke  et  al.  v.  Noble,  48 
Penn.  St.  168,  it  has  been  decided,  that  a 


311 


OF    PERSONAL    ESTATE    GENERALLY. 


against  the  others ;  and  in  this  case,  each  of  the  remaining  debtors  'will 
continue  severally  liable.(?4)     So  he  may  covenant  with  one  of  the  debtors 

(ti)  Ex  parte  Gifford,  G  Vcs.  807  ;  Thompson  v.  Lack,  3  C.  B.  540  (E.  C.  L.  R.  vol.  54) ; 
Kearsley  v.  Cole,  IG  M.  &  W.  136;  Price  v.  Barker,  Q.  B.  1  Jur.  N.  S.  775  ;  4  E.  &  B.      M 
7G0  (E.  C.  L.  R.  vol.  82)  ;  Willis  v.  De  Castro,  4  C.  B.  N.  S.  21G  (E.  C.  L.  R.  vol.  93).  I 


release  of  one  of  several  joint  debtors,  on 
payment  of  bis  proportion  of  the  debt, 
does  not  discharge  the  others,  if  it  was  not 
the  intention  of  the  parties  :  and  the  same 
is  trne  as  to  joint-tort-feasers :  Matthews 
V.  Chichopee  Manuf.  Co.,  3  Rob.  (N.  Y.) 
711  ;  see  also,  Hope  v.  Johnston,  11  Rich. 
135;  Seymour  v.  Butler,  8  Clarke  304. 
Where  all  parties  agree  to  the  release  of 
one  of  the  obligors,  or  covenantors,  of  a 
joint  bond  or  deed,  the  contract  will  still 
be  binding  as  to  the  remaining  parties ; 
for,  as  the  learned  judge  continues  to  ob- 
serve, in  the  case  last  cited:  "It  is  well 
settled,  that  if  the  name  of  one  of  two, 
or  more  joint  obligors  be  stricken  out  or 
erased,  or  his  seal  torn  from  a  bond  by  the 
consent  of  the  obligee  and  the  other  ob- 
ligors, it  shall  cease  to  be  the  bond  of  him 
whose  name  is  so  stricken  out  or  erased 
from  it,  but  shall  from  that  time  be  the 
bond  of  the  others.  And  for  what  reason  ? 
Because  it  was  their  agreement  that  it 
should  be  so.  Their  agreement  alone,  in 
this  respect,  without  more,  is  equivalent 
to  a  new,  and  re-execution  and  redelivery 
of  the  bond,  as  their  act  and  deed."  And 
see  Barringtonet  al.  D.The  Bank  of  Wash- 
ington, 14  S.  &  R.  405  ;  Bronson  et  al.  v. 
Fitshugh  et  al.,  1  Hill  185;  Rogers  v. 
Hosack's  Exrs.,  18  Wend.  319;  Campbell 
V.  Booth,  8  Md.  107;  Irwin  v.  Scribner,  15 
La.  Ann.  583. 

A  release,  however,  of  one  joint  con- 
tractor, to  be  binding,  must  be  a  techni- 
cal release,  that  is,  under  seal,  thereby 
importing  a  good  consideration:  Bank  of 
Catskill  V.  Messenger  et  al.,  9  Cowen  37  ; 
Harrison  v.  Close  et  al.,  2  Johns.  448  ; 
Rowley  v.  Stoddard,  7  Id.  207  ;  Walker  v. 
McCulloch,  4  Greenl.  421 ;  Shaw  v.  Pratt, 
22  Pick.  305  ;  De  Zeng  v.  Bailey  et  al.,  9 
Wend.  336  ;  McAllester  et  al.  i'.  Sprague 
et  al.,   34  Maine  296;  Frink  v.  Green,  5 


Barb.  455  ;  Shock  v.  Miller,  10  Penn.  St. 
401  ;  Armstrong  v.  Hayward,  6  Cal.  183  ; 
McAllister  v.  Denin,  27  Miss.  40 ;  Drink- 
water  V.  Jordan,  46  Maine  432  ;  Ayer  v. 
Ashmead,  31  Conn.  447;  but  a  release 
which  is  made  a  part  of  the  decree  of  a 
court,  is  a  technical  release,  though  not 
under  seal :  Benjamin  et  al.  v.  McConnell 
et  al.,  4  Gilm.  536.  Some  of  the  cases 
hold,  that  equity  will  not  relieve  against 
releases  of  this  description:  Willings  et 
al.  V.  Consequa,  Peters  C.  C.  301  ;  Joy  v. 
Wurtz,  2  Wash.  C.  C.  266 ;  while  others 
determine  that  equity  will  interpret  the 
release  according  to  the  intentions  of  the 
parties,  and  the  justice  of  the  case  :  Clag- 
gett  et  al.  v.  Salmon,  5  Gill.  &  Johns.  315; 
Norris's  Admr.  v.  Hammett  et  al.,  Charlt. 
267  ;  Kirby  v.  Taylor  et  al.,  6  Johns.  Ch. 
242  ;  but  fraud,  of  course,  avoids  the  re- 
lease :  Carter  v.  Connell  et  al.,  1  Whart. 
392.  Anything,  however,  which  operates 
as  a  complete  voluntary  discharge  of  one 
joint  debtor,  will  discharge  the  others 
also;  thus,  where  the  obligee  in  a  joint 
and  several  bond,  appointed  one  of  the 
administrators  of  one  obligor,  having  as- 
sets, to  be  one  of  his  own  executors,  the 
debt  will  be  thereby  paid,  and  the  surviv- 
ing obligor  discharged  :  Griffith  v.  Chew, 
Exr.,  8  S.  &  R.  17  ;  and  where  there  was  a 
joint  execution  against  two  persons,  and 
one  of  them  was  taken  in  execution,  and 
then  voluntarily  discharged  by  the  cred- 
itor, it  was  held,  that  this  was  a  release  of 
both:  Gould  v.  Gould  et  al.,  4  N.  H.  173  ; 
so,  where  one  injured  by  several  jointly, 
gave  a  receipt  to  one  of  them  "  in  full"  of 
said  L.'s  trespass,  when  he  and  Wilson  P. 
Hunter  (another  defendant)  were  in  com- 
pany together  with  others,  it  was  held  to 
operate  as  a  discharge  of  the  other  joint 
trespassers:  Gilpatrick  v.  Hunter  et  al., 
24  Maine    18 ;    but   the   taking;_  of  a  new 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY. 


311 


never  to  sue  him  ;  and  in  such  a  case  he  will  retain  his  remedy  against 
the  others  severally.(v)     On  account  of  the  several  liability,  the  estate 

{v)  Lacy  v.  Kynaston,  2  Salk.  575;  2  Wms.  Saund.  48,  n.  (1). 


security  from  one  of  two  joint  debtors, 
will  not  operate  as  a  release,  unless  it  is 
intended  to  have  that  effect:  Parker  v. 
Cousins,  2  Gratt.  372  ;  Anderson  v.  Neef 
et  al.,  32  Penn.  St.  379;  Bowers  v.  Stile, 
49  Id.  65 ;  Schollenberger  v.  Seldonridge, 
Id.  83  ;  though  at  common  law,  a  judgment 
obtained  against  one  of  several  joint-con- 
tractors, extinguishes  the  joint  liability  of 
those  not  sued,  as  well  as  of  him  who  was 
sued:  Mason  v.  Eldrod,  6  Wallace  (U.  S.) 
231 ;  nor  will  an  assignment  by  a  joint 
debtor  to  a  creditor,  of  all  his  interest,  in 
consideration  of  his  indebtedness,  have 
the  effect  of  a  release,  so  far  as  to  dis- 
charge other  joint  debtors  :  McLarren  v. 
Robinson,  20  Penn.  St.  127. 

Where  F.,  one  of  two  common  carriers, 
jointly  charged  by  the  plaintiffs  with 
negligence,  agreed  with  the  plaintiffs  bj-  a 
simple  contract  in  writing,  that  if  the  lat- 
ter would  release  T.,  the  other  carrier,  it 
should  not  impair  or  affect  any  liability 
which  he,  F.,  might  have  incurred,  or  was 
subject  to ;  and  thereupon  T.  was  released 
accordingly ;  it  was  held  that  F.'s  agree- 
ment not  being  under  seal,  did  not  qualify 
the  release,  so  as  to  prevent  its  operating 
the  discharge  of  both  F.  and  T.  from  the 
original  cause  of  action  :  Bronson  et  al.  v. 
Fitzhugh  etal.,  1  Hill  185. 

But  a  covenant  not  to  sue  one  of  several 
joint,  or  joint  and  several  debtors,  will 
not  operate  as  a  release,  but  will  only  dis- 
charge the  one  with  whom  the  covenant 
was  made  ;  who  may  have  his  remedy,  if  it 
should  be  broken  by  joining  him  as  de- 
fendant: Tuckerman  et  al.  v.  Newhall,  17 
Mass.  581;  Brown  v.  Marsh,  7  Vt.  320; 
Bank  of  Catskill  v.  Messenger  et  al.,  9 
Cowen  37 ;  Harrison  v.  Close  et  al.,  2 
Johns.  448  ;  Rowley  v.  Stoddard,  7  Id. 
207  ;  Walker  v.  McCulloch,  4  Greenl.  421 ; 
Mason  et  al.  v.  Jonett's  Admr.,  2  Dana 
107;  Reed  v.  Shaw,  1  Blackf.  245  ;  Shed  v. 
Pierce,  17  Mass.  623  ;  Sewall  v.  Sparrow, 
16  Id.'  24;   Ruggles  v.  Patten,  8  Id.  480; 


Crane,  Admr.,  v.   Ailing,    3    Green    423 
Durell   V.   Wendell   et    al.,   8    N.   H.   369 
Goodnow  V.  Smith    et  al.,    18  Pick.  414 
McAllester   et   al.    v.    Sprague   et   al.,   34 
Maine  296;  Fink  v.   Green,  5  Barb.  455 
Bozman  v.  The  State   Bank,   2  Eng.  328 
Miller     v.    Fenton,    11      Paige     Ch.     19 
Couch    V.    Mills    et    al.,    21    Wend.    424 
Browning  &  Co.  v.  Grady,  Admr.,  10  Ala. 
999  ;  Matthey  v.  Gaily,  4  Cal.  62  ;  City  of 
Carondelet  v.   Desnoyer,  27   Mo.   36;    and 
the  like  is  true  of  a  bond   of  indemnity 
given   to   one   of  two    joint   promissors : 
Berry  v.  Gillis,    17  N.   H.    9  ;   though  the 
principle     of     this     doctrine     has     been 
doubted:    Jonas    v.   Bank,    29    Conn.    25; 
and  note  a  distinction  between  a  covenant 
not  to  sue  for  a  limited  time,  and  a  cove- 
nant never  to  sue  :  Thurston  v.  James,  6 
R.  I.  103  ;  nor  will  a  receipt  in  full  to  one 
joint  debtor,  for  his  share  of  the  liability, 
effect   the    discharge    of    all ;    Rowley   v. 
Stoddard,     7     Johns.     207  ;     Andrews    v. 
Andrews   et  al.,    1   Root  72  ;   Shotwell  v. 
Miller,    Coxe    81 ;    Rogers    v.    Hemstead, 
Kirby  44;   Shock  v.  Miller,  10   Penn.   St. 
401  ;  and  it  has-been  doubted,  whether  it 
will  effect   tke    discharge   of  the    one  to 
whom  it  is  given :  Buckingham  ?'.  Oliver, 
3  E.  D.  Smitk  129;  Griffith  v.  Grogaa,  12 
Cal.  317  ;  nor  can  a   discharge  of  one  of 
several  joint  obligors  by  operation  of  law, 
relieve  the  other  obligors :  Ward  v.  John- 
son et  al.,  13  Mass.   148  ;  nor  a  judgment 
obtained  against  one,  without  satisfaction  : 
McLaurine  v.  Monroe,  30  Mo.  4G2  ;  Kauff- 
man  v.  Fisher,  3  Grant's  Cas.  302  ;  but  an 
actual    satisfaction    of   the   debt,   by   one 
joint  debtor,  will  release  all  :   Walker  v. 
McCulloch,  4  Greenl.  421 ;  and  so  of  pay- 
ment in  full,  by  one  of  two  or  more  joint 
trespassers,  in  satisfaction  of  the  damage 
committed:  Gee  v.  Overby,  7  Eng.  164. 

The  law  as  regards  joint  trespassers  or 
wrongdoers,  seems  to  be  the  same  with 
that  of  joint  obligors,  as  respects  the  effect 
produced  by  a  release  of  one,  or  a  cove- 


311 


OF    PERSONAL    ESTATE    GENERALLY. 


of  a  person  who  lias  become  jointly  and  severally  bound  is  not  discharged 
by  his  decease  in  the  lifetime  of  his  co-debtors,  but  still  remains  liable 
to  the  entire  debt  as  respects  the  creditor,  and  to  a  portion  of  it  as  re- 
spects the  surviving  co-debtors.  It  has  been  recently  enacted,  that  no 
co-contractor  or  co-debtor,  whether  liable  jointly  only  or  jointly  and 
severally,  shall  lose  the  benefit  of  the  Statutes  of  Limitation  by  reason 
r*qi'?n  only  of  payment  of  any  *principal,  interest  or  other  money  by 
"      any  other  co-contractor  or  co-debtor.(?^) 

One  of  the  most  usual  means  of  incurring  a  joint  and  several  liability 
is  the  entering  into  a  partnership.  At  law  the  liability  of  partners  is 
joint  only,  as  to  debts  incurred  by  the  partnership ;  so  that  they  ought 
all  to  be  joined  as  defendants  to  an  action  at  law  for  recovering  any  such 
debt.(a;)  But  a  dormant  partner,  wliosc  name  may  or  may  not  be  known, 
may  either  be  joined  or  not  at  the  pleasure  of  the  creditor  ;(2/)^  unless 

(w)  Stat.  19  &  20  Vict.  c.  97,  s.  14,  not  retrospective  ;  Jackson  v.  WooUey,  8  E.  &  B. 
784  (E.  C.  L.  R.  vol.  35). 

(x)  See  Rice  v.  Shute,  5  Burr.  2G11  ;   1  Wms.  Saund.  291  b,  n.  (4). 

(y)  Do  Mautort  v.  Saunders,  1  B.  &  Ad.  398  (E.  C.  L.  R.  vol.  20) ;  Beckham  i'.  Drake, 
9M.  &  W.  79;   11  M.  &  W.  315. 


nant  entered  into  with  one  to  indemnify 
him  from  all  legal  proceedings:  Snow  u. 
Chandler,  10  N.  H.  92  ;  Bronson  et  al.  v. 
Fitzhugh  et  al.,  1  Hill  185  :  Smithwick  v. 
Ward,  7  Jones  L.  64;  Lovejoy  v.  Murray, 
Leg.  Intel.  July  6,  1866;  but  they  may  be 
sued  separately:  Gee  v.  Overby,  7  Eng. 
164. 

Where  all  the  joint  obligors  or  covenan- 
tors- are  dead,  the  proper  parties  to  pro- 
ceed against,  are  the  representatives  of 
the  last  survivor:  Beebe  et  al.,  Exrs.,  f. 
Miller,  Minor  364. 

1  A  secret  partner  is  as  much  governed 
by  the  transactions  of  the  acting  partner, 
as  if  his  name  was  used  :  Shead  v.  Bar- 
rington  et  al.,  1  Stew.  134 ;  Richardson  v. 
Farmer,  36  Mo.  35;  but  this  law  is  con- 
fined to  trade  and  commerce,  and  does  not 
extend  to  speculation  in  the  purchase  of 
lands  :  Pitts  v.  Waugh  et  al.,  4  Mass.  425. 

An  action  may  be  sustained  by  the 
ostensible  partners,  without  joining  those 
that  are  dormant:  Lord  v.  Baldwin,  6 
Pick.  350;  Wilkes  r.  Clark,  1  Dev.  178; 
Shropshire  v.  Shepherd,  3  Ala.  733  ;  Mon- 


roe V.  Ezzell,  11  Ala.  603 ;  Clarkson  v. 
Carter,  3  Cowen  84  ;  or  the  dormant  partner 
may  be  joined  as  co-plaintiff:  Rogers  v. 
Kichline,  3G  Penn.  St.  293;  in  Secor  v. 
Keler,  4  Duer  416,  which  was  an  action 
for  work  and  labor  done  by  the  firm,  it 
was  held  that  he  must  be  joined  ;  but  the 
contrary  has  been  held :  Artisan's  Bank 
V.  Treadwell,  34  Barb.  553  ;  Boardman  v. 
Keeler  et  al.,  2  Vt.  65;  Clark  et  al.  v. 
Miller  et  al.,  4  Wend.  628  ;  but  where  the 
ostensible  partners  are  dead,  the  surviving 
dormant  partner  may  sue  alone  :  Beach  v. 
Hayward,  10  Ohio  455.  On  the  other 
hand,  dormant  partners,  when  discovered, 
may  be  joined  as  parties  defendant 
Griffith  &  Co.  v.  Buffum  et  al.,  22  Vt.  181 
Everett  et  al.  v.  Chapman  et  al.,  6  Conn 
347 ;  Lea  v.  Guice,  13  Sm.  &  M.  657 
Reynolds  v.  Cleveland  et  al.,  4  Cowen  282 
but  they  need  not  be  so  joined  :  Sylvester 
et  al.  V.  Smith,  9  Mass.  119;  Carey  v. 
Bright,  58  Penn.  St.  70 ;  for  a  dormant 
partner  is  an  allowable,  not  an  essential 
party:  Desha  et  al.  v.  Holland,  12  Ala. 
513;  Clark  et  al.  v.  Miller  et  al.,  4  Wend. 


OF    JOINT    OWNERSHIP   AND   JOINT   LIABILITY.  312 

the  contract  be  under  seal,  in  which  case,  as  the  deed  is  itself  the  con- 
tract, and  not  merely  evidence  of  it,{z)  those  only  can  be  sued  on  it  who 
have  sealed  and  delivered  it.  In  equity,  however,  in  f\ivor  of  creditors, 
all  partnership  debts  are  considered  to  be  both  joint  and  several.  On 
the  decease  of  a  partner,  therefore,  his  estate  will  be  liable  in  equity  to 
all  the  partnership  debts  incurred  previous  to  his  decease  ;(a)  and  the 
creditors  may,  if  they  please,  resort  in  the  first  instance  to  the  estate  of 
the  deceased,  leaving  it  to  his  representatives  to  recover  from  the  sur- 
viving partners  their  share  of  the  debts.(5)  It  seems,  however,  that  in 
analogy  to  the  rule  in  bankruptcy,  next  stated,  the  separate  creditors  of 
the  deceased  partner  would  first  be  paid  in  full  out  of  the  estate,  before 
its  application  to  the  payment  of  any  of  the  debts  of  the  partnership. (c) 

*In  the  case  of  the  bankruptcy  of  a  trading  partnership,  the  r*3;|^3-] 
rule  which  is  always  followed  in  the  payment  of  the  debts  is, 
that  the  joint  assets  of  the  firm  are  in  the  first  place  liable  to  the  part- 
nership debts ;  and  that  the  separate  estate  of  each  partner  is  in  the 
first  place  liable  to  his  separate  debts,  which  must  be  paid  in  full  out  of 
such  separate  estate,  before  any  of  it  can  be  applied  towards  payment  of 

(z)  Atite,  p.  88. 

(a)  Devaynes  v.  Noble,  1  Meriv.  529,  563 ;  2  Russ.  &  My.  495. 

(b)  Wilkinson  v.  Henderson,  1  Myl.  &  K.  582  ;  Braithwaite  v.  Britain,  1  Keen  206 ; 
Thorpe  v.  Jackson,  2  You.  &  Col.  553 ;  Way  v.  Bassett,  5  Hare  55. 

(c)  Gray  v.  Chisvvell,  9  Ves.  118  ;  Brown  v.  Weatherby,  12  Sim.  6,  10;  Ridgway  v. 
Clare,  19  Beav.  Ill ;  Whittingstall  v.  Grover,  M.  R.,  10  W.  R.  53  ;  Lodge  v.  Pritchard, 
4  Giff.  294. 

628;  Brown  v.  Birdsall,  29  Barb.  549;  Black,  9  S.  &  R.  142,  which  particularly 
hence,  where  in  the  case  of  a  secret  part-  noticing  the  case  of  Sheey  v.  Mandevillc, 
nership,  an  execution  was  levied  on  the  nevertheless  decided  in  accordance  with 
goods  in  the  name  of  the  ostensible  part-  what  would  seem  to  be  the  fixed  legal 
ner,  it  was  held  that  it  should  not  be  principle,  that  a  judgment  recovered 
postponed  for  a  subsequent  one,  in  the  against  one  partner,  is  a  bar  to  a  subse- 
names  of  both  the  partners :  Brown's  Ap-  quent  suit  against  both  (where  there  are 
peal,  17  Penn.  St.  480.  two),  though  the  new  defendant  was  a 
Where  one  takes  a  note  from  an  ostensi-  dormant  partner  at  the  time  of  the  con- 
ble  partner,  upon  which  a  judgment  is  tract,  and  not  discovered  until  after  suit, 
obtained,  an  execution  issued,  and  re-  But  Sheey  v.  Maudeville  has  been  over- 
turned, ^^  nulla  bona,"  it  has  been  held,  ruled  in  Mason  v.  Elrded,  6  Wall.  U.  S. 
that  the  holder  of  the  note  will  not  231 ;  and  see  aw^e,  p.  308,  and  p.  311,  notes, 
be  thereby  barred  from  a  suit  against  all  The  admission  of  a  dormant  partner, 
the  partners  :  Watson  et  al.  v.  Owens  et  who  is  proved  to  be  so,  may  be  given  in 
al.,  1  Richard.  Ill;  Sheey  v.  Mandeville  evidence  to  bind  the  firm:  Kaskaskia 
et  al.,  6  Cranch  254;  but  this  has  been  Bridge  Co.  v.  Shannon  et  al.,  1  Gilm.  15; 
denied  in  Pennsylvania,  in  Smith  et  al.  o.  Shepherd  v.  Ward,  8  Wend.  542. 


313 


OF    PERSONAL    ESTATE    GENERALLY. 


the   debts   of  the  partnership.((Z)^     Any  creditor  of  a  partnership  may 
however  be  a  petitioning  creditor  in  respect  of  his  debt,  on  the  bank- 

(rf)  Ex  parte  Elton,  3  Ves.  238,  241  ;  Ex  parte  Kensington,  14  Ves.  447;  Ex  parte 
Pcake,  2  Rose  54';  Ex  parte  Harris,  I  Madd.  583  ;  Ex  parte  Janson,  3  Madd.  229  ;  Re 
Plummer,  1  Phil.  5G;-  Ex  parte  Kennedy,  2  De  G.,  -M.  <k  G.  228;  Ex  parte  Topping,  L. 
C,  11  Jur.  N.  S.  210. 


1  See  ante,  p.  132,  note  ^2  i. 

An  adjudication  of  bankruptcy  may  be 
made  against  one  partner  only  on  a  joint 
debt.  The  partnership  creditor  has  such 
an  interest  in  the  separate  property  of  any 
one  of  the  partners,  that  he  may  proceed 
against  one  alone :  Melick,  4  B.  R.  26. 
See  also  Stevens,  5  Id.  112. 

As  to  the  adjudication  of  bankruptc}'  of 
partnerships  upon  the  petition  of  a  mem- 
ber or  members  thereof,  see  Willis,  3  B.  R. 
51;  Prankard,  1  Id.  51;  Boylan,  6  Int. 
Rev.  Rec.  28  ;  Foster,  3  B.  R.  57  ;  Mitchell, 
Id.  111.  The  decease  of  one  partner  prior 
to  an  adjudication  upon  the  question  of 
bankruptcy,  is  not  legal  cause  for  dismiss- 
ing the  petition :  Hunt  v.  Pooke,  5  B.  R. 
161.  So  long  as  joint  debts  of  a  firm  re- 
main outstanding  and  unsettled,  proceed- 
ings in  bankruptcy,  whether  voluntary  or 
involuntary,  may  be  joint :  Williams,  3  B. 
R.  74  ;  Hunt  v.  Pooke,  5  Id.  161.  An  as- 
signee in  bankruptcy,  of  an  individual 
partner,  is  not  entitled  to  the  possession  of 
-partnership  property.  In  order  to  reach 
partnership  property  through  the  bank- 
ruptcy court,  all  the  co-partners  must  be 
adjudged  bankrupt:  Shepard,  3  B.  R.  42. 
But  the  assignee  of  a  bankrupt  firm,  takes 
by  his  assignment  all  the  property  of  the 
firm  and  of  the  individual  members  thereof, 
even  though  part  of  the  property  may  be 
out  of  the  district  in  which  the  bankrupts 
reside,  and  owned  in  part  by  partners,  who 
have  not  been  joined  in  the  bankruptcy 
proceedings :   Leland,  5  B.  R.  222. 

Where  the  members  of  a  firm,  which  is 
insolvent,  make  a  conveyance  of  all  their 
joint  personal  property  to  creditors,  who 
have  reasonable  cause  to  believe  the  firm 
to  be  insolvent,  and  within  four  months 
thereafter  one  of  the  firm  is  adjudged  a 
bankrupt  on  his  own  petition,  the  con- 
veyance to  such  creditors  by  all  the  part- 


ners does  not  constitute  a  preference, 
which  the  assignee  of  the  bankrupt  partner 
can  avoid  :  Forsaith  v.  Merritt,  3  B.  R. 
11.  Boml  fide  transfers  of  partnership 
effects  by  one  member  of  the  firm  to  an- 
other, vests  the  title  in  the  transferee  as 
his  separate  estate  :  Byrne,  1  B.  R.  122. 
Where  a  member  of  a  late  firm  files  his 
individual  petition  in  bankruptcy,  and  in- 
serts in  his  schedules  debts  contracted  by 
the  firm,  and  there  are  no  partnership 
assets  to  be  administered,  he  will  be 
entitled  to  be  discharged  from  all  his  debts, 
individual  and  copartnership :  Abbe,  2  B. 
R.  2G;  Bidwell,  Id.  78,  But  where  there 
are  both  firm  debts  and  firm  assets,  and 
the  copartnership  is  actually  existing,  and 
has  not  been  determined  theretofore  by 
bankruptcy,  insolvency,  assignment  or 
otherwise,  the  firm  must  be  declared 
bankrupt,  by  either  voluntary  or  involun- 
tary proceedings,  before  a  member  of  it 
can  be  discharged:  Winkens.  2  B.  R.  113. 
See  also  Frear,  1  B.  R.  201  ;  Little,  Id.  74 ; 
Shepard,  3  Id.  42.  But  see  Melick,  4  B. 
R.  26  ;  Stevens,  5  Id.  112.  A  firm  may  be 
declared  bankrupt  although  one  of  its 
members  may  have  been  already  adjudged 
such  on  a  creditor's  petition .  Hunt  v. 
Pooke,  5  B.  R.  161.  An  assignee  of  an 
individual  partner  may  petition  to  have 
the  firm  declared  bankrupt,  in  order  to  a 
proper  administration  of  separate  and 
partnership  assets,  and  if  there  is  no  de- 
nial of  the  insolvency  of  such  firm,  it  will 
be  adjudged  bankrupt:  Shumate  v.  Haw- 
thorn, 3  B.  R.  54.  A  separate  creditor, 
who  has  proved  his  debt  against  one  of  the 
partners,  has  no  right  to  participate  in  the 
choice  of  an  assignee,  where  the  partner- 
ship is  in  bankruptcy  :  Phelps,  1  B.  R.  139. 
At  law,  partners  have  aright  to  dispose 
of  their  property  as  they  please  :  McDonald 
et  al.  V.  Beach  et  al.,  2  Blackf.  55  ;  Sigler 


OF   JOINT    OWNERSHIP   AND   JOINT   LIABILITY. 


313 


ruptcy  of  any  individual  member  of  the  firm  ;  and  in  that  case  he  will 
be  entitled  to  a  dividend  on  his  debt  out  of  the  estate  of  such  bankrupt 


j;.  Knox  Co.  Bank  8  Ohio  St.  511;  and 
separate  or  joint  creditors  may  attach 
either  separate  or  joint  property :  Bard- 
well  V.  Perry  et  al.,  19  Vt.  292  ;  Jarvis  et 
al.,  Admrs.,  v.  Brookes  et  al.,  Admrs.,  3 
Fost.  131 ;  bnt  equity  will  not  allow  a 
partner  to  dispose  of  his  stock  in  trade, 
for  the  purpose  of  paying  his  own  cred- 
itors, to  the  exclusion  of  those  of  the 
partnership :  Ferson  v.  Monroe,  1  Fost. 
462 ;  French  v.  Lovejoy,  12  N.  H.  458 ; 
Hill  V.  Beach,  1  Beasley  31  ;  Sage  v.  Chol- 
lar,  21  Barb.  596  ;  nor  to  sell,  or  mort- 
gage, his  undivided  interest,  in  a  specific 
part  of  the  property  belonging  to  the 
partnership  :  Lovejoy  v.  Bowers,  11  N.  H. 
404 ;  and  any  such  attempt  to  appropriate 
the  partnership  property  to  his  individual 
benefit,  will  be  regarded  as  a  fraud  upon 
his  copartners:  Filley  et  al.  v.  Phelps  et 
al.,  18  Conn.  294;  Rogers  &  Son  v.  Batch- 
elor  et  al.,  Admrs.,  12  Peters  221  ;  Yale  v. 
Yale,  13  Conn.  185  ;  Saloy  v.  Albrecht,  17 
La.  Ann.  *I5.  This  is  in  accordance  with 
that  equitable  principle,  that  partnership 
property  is  to  be  applied  to  the  payment 
of  partnership  debts,  before  a  separate 
creditor  can  be  allowed  to  resort  to  it : 
Lord  V.  Baldwin,  6  Pick.  350 ;  Morrison  v. 
Blodgett  et  al.,  8  N.  H.  248;  Murray  v. 
Murray  et  al.,  5  Johns.  Ch.  60  ;  Conkling  et 
al.  V.  The  Washington  University  et  al.,  2 
Md.  Ch.  Decs.  49T  ;  Pierce,  Admr.  et  al.  v. 
Tiernan  et  al.,  10  Gill.  &  Johns.  253  ;  Mc- 
Donald et  al.  V.  Beach  et  al.,  2  Blackf.  55  ; 
White  V.  The  Union  Ins.  Co.,  1  N.  &  Mc- 
Cord  557  ;  Wilson  et  al.  v.  Conine,  2  Johns. 
282 ;  McCuUoch  v.  Dashiell,  1  Har.  &  Gill. 
96 ;  Tucker  v.  Oxley,  5  Cranch  35  ;  White 
V.  Dougherty  et  al.,  Mart.  &  Yerg.  309 
Doner  et  al.  v.  StaufFer  et  al.,  1  Penna.  R 
178;  Woodrop  «;.  Ward,  3  Desauss.  203 
Gardiner  et  al.  v.  Smith,  12  La.  370 
Emanuel  v.  Bird,  Admr.,  19  Ala.  596 
Grosvenor  &  Co.  v.  Austin,  6  Ohio  103 
Muir  V.  Leitch  et  al.,  7  Barb.  341  ;  Buchan 
V.  Sumner,  2  Barb.  Ch.  166 ;  Christian  v. 
Ellis,  1  Gratt.  396  ;  Nicoll  et  al.  v.  Mum- 
25 


ford,  4  Johns.  Ch.  522  ;  Deveau  v.  Fowler,  2 
Paige  Ch.  400  ;  Jackson  v.  Cornell  et  al.,  1 
Sandf.  Ch.  348  ;  Murril  et  al.  v.  Neill  et 
al.,  8  How.  414;  Washburn  et  al.  v.  The 
Bank  of  Bellows  Falls  et  al.,  19  Vt.  278  ; 
Wilder  et  al.  v.  Keeler  et  al.,  2  Paige  Ch. 
1C7  ;  Smith  v.  Barker  etal.,  10  Maine  158; 
Lucas  et  al.  v.  Atwood  et  al.,  2  Stew.  378 ; 
Glum  V.  Gill,  2  Md.  15  ;  Burtus  v.  Tisdale 
et  al.,  4  Barb.  571;  Linford  v.  Linford,  4 
Dutch.  113;  Wintersmith  v.  Pointer,  2 
Mete.  (Ky.)  457. 

But  this,  like  every  other  general  rule, 
admits  of  exceptions ;  and  it  is  hardly, 
indeed,  susceptible  of  strict  application, 
in  any  cases  but  those  of  bankruptcy,  in- 
solvency, and  execution.  The  conse- 
quences of  its  application  to  partnerships 
would  be  highly  injurious  to  trade,  and 
embarrassing  to  justice.  ...  It  has 
been  repeatedly  settled  here,  as  well  as  in 
England,  that  the  partner  may  be  sued 
for  separate  debts,  that  the  partnership 
effects  may  be  taken  in  execution  and 
sold  by  moieties ;  and  that  the  purchaser 
of  the  moiety,  under  the  execution,  shall 
be  considered  as  tenant  in  common  with 
the  partner  :"  McCarty  v.  Emlen,  2  Dall. 
278.  "  Each  partner  is  entitled  to  the 
possession  of  the  partnership  property  ;  if 
one  excludes  the  other,  no  action  at  law 
lies — the  remedy  is  in  equity.  So,  if  the 
sheriff,  by  virtue  of  an  execution  against 
one  of  several  partners,  takes  posses- 
sion of  the  property,  an  action  at  law,  I 
apprehend,  does  not  lie  against  him.  The 
court  from  which  the  execution  issued 
would  stay  proceedings  upon  it,  to  give 
time  to  have  an  account  taken  in  equity  ; 
but  if  no  such  stay  is  obtained,  the  officer 
can  sell  the  right  of  the  partner  who  is 
defendant  in  the  execution.  According 
to  the  rule  in  equity,  the  partnership  ac- 
counts should  all  be  liquidated  before  a 
sale  on  execution,  .  .  .  but  if  the  sale 
should  be  made,  and  the  purchaser  should 
take  the  property,  would  he  be  a  trespass- 
er?   or  would  he  not  be  tenant  in  com- 


313 


OF   PERSONAL   ESTATE   GENERALLY. 


rateably  with  his  separate  creditors,(c)     And  the  other  partnership  cred- 
itors may  prove  their  debts  on  such  separate  bankruptcy  in  order  to  have 

(e)  Ex  parte  Ackerman,  14  Ves.  604;  Ex  parte  Detastet,  17  Vcs.  247  ;  stat.  32  &  33 
Vict.  c.  71,  s.  100. 


mon  with  the  other  partner,  of  the  part- 
nership property,  subject  to  the  claims  of 
the  creditors  of  the  partnership  ?  The 
sheriff  or  other  officer,  in  making  a  levy, 
and  taking  the  property  to  a  place  of  safe 
deposit,  is  surely  not  a  trespasser  :"  Scru- 
gham  V.  Carter,  12  Wendj  133;  Hughes  v. 
Boring,  IG  Cal.  81. 

That  the  partnership  goods  may  be  at- 
tached, or  levied  upon  under  an  execu- 
tion, for  the  separate  debt  of  one  of  the 
partners,  is  not  doubted :  Bradbury  v. 
Smith,  21  Maine  122  ;  Douglass  v.  "SVinslow, 
20  Id.  89  ;  Reed  v.  Johnson,  24  Id.  322  ; 
Reed  v.  Shepardson,  2  Vt.  120  ;  Schatzell 
&  Co.  V.  Bolton,  2  McCord  478  ;  Knox  v. 
Schepler,  2  Hill  595  ;  Morgan  r.  Watmough, 
5  Whart.  525  :  Dow,  Admr.  v.  Sayward,  14 
N.  H.  9;  Clark  v.  Lyman,  Admr.,  8  Vt. 
290 ;  Whitney  v.  Ladd,  10  Id.  165  ;  Burrall 
V.  Acker,  23  Wend.  606;  Placet-.  Sweetzer 
et  al.,  16  Ohio  142  ;  Clark  v.  Allee,  3  Bar- 
ring. 80  ;  Knoxetal.  v.  Summers,  4  Yeates 
477  ;  Andrews  v.  Keith,  34  Ala.  722  ;  Wiles 
V.  Maddox,  26  Mo.  77  ;  James  v.  Stratton,  32 
111.  202  ;  but  the  preponderance  of  au- 
thority would  seem  to  determine,  that  the 
sheriff  cannot  take  the  goods  out  of  the 
possession  of  the  other  partners :  Siller  et 
al.  V.  Walker,  1  Freem.  Ch.  (Miss.)  77  ;  Deal 
V.  Bogue,  20  Penna.  St.  233  ;  Newman  etal. 
V.  Bean,  1  Post.  93  ;  Thomasv.  Lusk,  13  La. 
Ann.  277  ;  and  cases  above  cited;  though  the 
contrary  has  been  decided  :  White  v.  Jones, 
38  111.  159 ;  and  he  can  only  sell  the  inter- 
est of  the  partner  who  is  defendant  in  the 
execution  :  Doner  et  al.  v.  StaufFer  et  al.,  1 
Penna.  R.  198  ;  Haskins  v.  Everett,  4  Sneed 
531 ;  which  has  been  held  in  a  case  where 
the  sheriff's  sale  was  by  sample  :  Tread- 
well  V.  Roscoe,  3  Dev.  50  ;  but  the  sheriff 
should  levy  upon  "  all  the partnershiji  effects, 
....  because  the  moieties  are  undivided  ; 
for  if  he  seize  but  a  moiety,  and  sell  that, 
the  other  partner  will  have  a  right  to  a 
moiety  of  that  moiety  ;  but  he  must  seize 


tlie  whole,  and  sell  a  moiety  thereof  undi- 
vided, and  the  vendee  will  be  tenant  in 
common  with  the  other  partner :  Slaver  v. 
White  etal.,  6Munf.  Ill;  Phillips  u.  Cook, 
24  Wend.  393  ;  Scrugham  v.  Carter,  12  Id. 
133.  Where  a  sale  has  been  made  under 
such  an  execution,  the  proceeds  must  be 
paid  over  to  the  execution  creditor,  and 
the  recourse  of  the  partners,  or  of  the 
creditors  of  the  firm,  is  against  the  part- 
nership property,  for  the  purchaser  has 
only  acquired  an  interest  in  the  assets, 
after  the  payment  of  the  partnership 
debts  and  liabilities:  Phillips  v.  Cook,  24 
Wend.  393;  Wilson  et  al.  v.  Conine,  2 
Johns.  282  ;  Doner  et  al.  v.  Stauffer  et  al., 

1  Penna.  R.  198  ;  Lothrop  v.  Wightman, 
41  Penn.  St.  297.  But  an  attachment  by 
a  creditor  of  one  of  the  partners,  will  not 
prevail  against  a  subsequent  attachment 
of  a  joint  creditor:  Pierce  i;.  Jackson,  6 
Mass.  242  ;  Allen  et  al.  v.  Wells  et  al.,  22 
Pick.  455  ;  nor  will  it  be  good  against 
partnership  property  in  the  hands  of  a 
creditor  of  the  firm,  who  may  retain  for 
his  debt :  Morgan  v.  Watmough,  5  Whart. 
525;  and  see  Clark  v.  Allee,  3  Barring.  80. 

That  the  sheriff  in  an  execution  against 
the  partnership  property,  for  a  debt  due 
by  an  individual  partner,  "  can  sell  only 
the  actual  interest  which  such  partner  has 
in  the  partnership  property,  after  the  ac- 
counts are  settled,  or  subject  to  the  part- 
nership debts,  which  are  first  to  be  paid," 
has  been  repeatedly  decided :  Jarvis  v. 
Hyer  et  al.,  4  Dev.  364;  Barber  v.  The 
Hartford  Bank,  9  Conn.  407 ;  Lynden  v. 
Gorham  et  al.,  1  Gallis.  367  ;  Fisk  v.  Her- 
rick,  6  Mass.  271  ;  Church  et  al.  v.  Knox 
et  al.,  2  Conn.  514;  Brewster  et  al.  v. 
Hammett  et  al.,  4  Id.  240  ;  In  the  matter  of 
Smith,  16  Johns.  102;  NicoU  et  al.  v. 
Mumford,  4  Johns.  Ch.  325  ;  Goodwin  v. 
Richardson,  Admr.,  11  Mass.  472  ;  Gibson 
V.  Stevens,  7  N.  H.  352 ;  Moody  v.  Payne, 

2  Johns.  Ch.  548  ;  Knox  v.  Schepler,  3  Hill 


OF   JOINT   OWNERSHIP   AND   JOINT   LIABILITY. 


313 


a  vote  at  any  meeting  of  creditors ;  but  they  can  receive  no  dividends 
till  the  separate  creditors  have  been  paid  in  full.(/)     But  if  any  creditor 

(/)  Stat.  32  &  33  Vict.  c.  71,  s.  103.  A  similar  provision  was  contained  in  stat.  12 
&  13  Vict.  c.  106,  s.  140,  repealing  stats.  6  Geo.  IV.  c.  16,  s.  62,  and  5  &  6  Vict.  c.  122, 
s.  39,  to  the  same  eflFect. 


595  ;    Doner   et   al,   v.  Stauffer    et  al.,   1 
Penna.  R.  198  ;  Wilter  v.  Richards,  10  Conn. 
31;  Filley  et   al.  v.  Phelps  et  al.,   18  Id. 
294;    Rogers   &   Son  v.   Batchelor  et  al., 
Admrs.,  12   Id.  221  ;  Yale  v.  Yale,  13   Id. 
185  ;  Burtus  v.  Tisdale  et  al.,  4  Barb.  571  ; 
Clark  «;..Allee,  3   Harring.   80  :  Treadwell 
V.  Roscoe,  3  Dev.  50 ;  Merrill  et  al.  v.  Rin- 
ker,  1  Baldw.  534;  Sitler  et  al.  v.  Walker, 
1  Freem.  Ch.  (Miss.)  77;   Deal  v.  Bogue, 
20  Penn.  St.   233;   Lucas  f.   Laws,  27  Id. 
21-1 ;  Nixon  v.  Nash,  12  Ohio  St.  647  ;  this 
interest   of  the   individual  partner,  is   his 
share  of  the  surplus  after  the  payment  of 
the  partnership   debts,  and  settlement  of 
the  partnership  equities  :  Newman  et  al. 
V.  Bean,  1  Fost.   93  ;   Morrison  v.  Blodgett 
et  al.,  8  N.  H.  248  ;   NicoU   et  al.  v.  Mum- 
ford,  4  Johns.  Ch.  525  ;  White  v.  Dougherty 
et  al.,  Mart.  &  Yerg.  309 ;   Doner  et  al.  v. 
Stauffer  et  al.,  1  Penna.  R.  198  ;    Witter  v. 
Richards,    10    Conn.   37;  Filley  et   al.   ■;;. 
Phelps  et  al.,  18  Id.  294  ;  United  States  v. 
Huck  et  al.,  8  Peters  271 ;  Rogers  &  Son  v. 
Batchelor  et  al.,  Admr.,  12  Id.  221 ;  Yale  v. 
Yale,  13  Conn.  185  ;  Buchan  v.  Sumner,  2 
Barb.  Ch.  166 ;  Sutcliffe  v.  Dohrmann,  16 
Ohio    181  ;    Place  v.  Sweetzer  et  al..  Id. 
142  ;  Clark  v.  Allee,  3  Harring.  80  ;  Setler 
et  al.  V.  Walker,  1  Freem.  Ch.  77  ;  Atwood 
V.  Meredith,  37  Miss.  635  ;   Pitman  v.  Rob- 
icheau,  14  La.  Ann.  108;  Arnolds.  Wain- 
wright,  6  Minn.  358 ;  Crooker  v.  Crooker, 
52  Maine  267  ;  this  is  all  that  a  partner 
can  pass  by  assignment :  Rodriguez  v.  Hef- 
ferman,  5  Johns.  Ch.  417  ;  Nicoll   et  al.  v. 
Mumford,  4  Id.  525  ;  Doner  et  al.  v.  Stauf- 
fer et  al.,  1  Penna.  R.  198  ;  Burtus  v.  Tisdale 
et  al.,  4  Barb.  571 ;   Fellows  v.  Greenleaf, 
43  N.  H.  421  ;  and  the  purchaser  becomes 
a  tenant  in   common  with  the  remaining 
partners :  Gilmore  v.  The  N.  A.  Land  Co. 
et  al.,  Peters  C.  C.  460 ;  Phillips  v.  Cook 
24  Wend.   393  ;   McCarty  v.  Emlen,  2  Dall. 
278 ;  Slaver  v.  White  et  al.,  6  Munf.  Ill ; 


Sitler  et  al.  v.  Walker,  1  Freem.  Ch.  77 ; 
Remheimer  v.  Hemingway,  35  Penn.  St. 
432. 

The  rule  that  partnership  assets  are  to 
be  applied  to  the  payment  of  the  partner- 
ship debts,  before  the  creditor  of  one  of  the 
partners  can  derive  any  benefit  therefrom, 
arises  from  the  equities  subsisting  be- 
tween the  partners,  and  not  from  any 
preference  given  to  the  joint  creditors : 
Ho.xie  V.  Carr  et  al.,  1  Sumn.  171  ;  Doner 
et  al.  V.  Stauffer  et  al.,  1  Penna.  R.  198 ;  Allen 
et  al.  V.  The  Centre  Valley  Co.  et  al.,  21 
Conn.  130  ;  Washburn  et  al.  v.  The  Bank 
of  Bellows  Falls  et  al.,  19  Vt.  278  ;  Reese 
et  al.  V.  Bradford  et  al.,  13  Ala.  837  ;  Bard- 
well  V.  Perry  et  al.,  19  Vt.  292  ;  Glenn  v. 
Gill,  2  Md.  15;  Yearsley's  Est.,  1  Am.  L. 
Reg.  636  ;  Backus  v.  Murphy,  38  Penn.  St. 
397  ;  Potts  V.  Blackwell,  4  Jones  Eq.  58  ; 
Huskill  V.  Johnson,  24  Geo.  625  ;  Miller  v. 
Estill,  5  Ohio  St.  508  ;  or,  to  use  the  words 
of  Judge  Lane,  in  Grosvenor  &  Co.  v. 
Austin's  Admr.,  6  Id.  112,  a  copartnership 
"  creditor,  is  permitted  a  specific  prefer- 
ence, to  subject  that  joint  fund  to  the 
payment  of  his  joint  claim,  or  debt,  and 
this,  not  because  the  creditors'  rights  are 
enlarged  by  the  existence  of  the  joint  fund, 
but  because  the  interests  of  the  jjartners 
are  so  connected  with  its  distribution,  that 
it  is  necessary  to  adopt  this  rule,  to  secure 
the  rights  of  the  debtors  between  them- 
selves. Hence  the  doctrine  has  been  in- 
troduced, that  the  partnership  property 
should  be  first  applied  in  satisfaction  of 
the  partnership  debts ;  not  for  the  credi- 
tors' sake,  but  because  there  is  a  fund, 
which  both  parties  have  a  right  recipro- 
cally, to  apply  for  the  benefit  of  a  third 
party ;"  and,  with  similar  reasoning  the 
case  of  Rice  v.  Barnard  et  al.,  20  Vt.  479, 
decided,  that  "the  right  of  partnership 
creditors,  to  claim  a  preference  over  the 
creditors  of  the  individual  members  of  the 


313 


OF  PERSONAL  ESTATE  GENERALLY. 


has  a  joint  and  several  security,  ^Ybich  -would  enable  him,  at  law,  to  sue 
any  partner  severally,  he  may,  at   his  option,  prove   his  debt  against 


firm,  in  the  distribution  of  the  partnership 
property,  is  wholly  dependent  upon  the 
right  of  the  individual  partners,  to  enforce 
a  lien  upon  the  partnership  funds  for  the 
payment  of  the  partnership  liabilities,  be- 
fore the  individual  debts  ;  and  if  the  con- 
tract of  partnership  be  of  such  a  nature, 
that  the  partners  can  enforce  no  such- 
right  as  between  themselves,  the  partner- 
ship creditors  can  claim  no  such  prefer- 
ence." But  in  Camniack  v.  Johnson  et  al., 
1  Green  Ch.  IGT,  the  chancellor  seemed  to 
be  of  a  difl'erent  opinion,  ruling,  that  "in 
an  open  firm,  the  credit  is  given  to  the 
firm,  and  to  the  goods  they  are  possessed 
of,  and  a  partnership  creditor  shall  be  first 
paid  out  of  them ;  but,  if  the  partner  be 
unknown,  the  credit  is  given  to  the  visi- 
ble partner  only,  and  the  goods  in  his 
possession  are  supposed  to  be  his  own, 
and  in  such  case,  the  discovery  of  such 
latent  partner,  cannot  give  any  preference 
to  a  partnership  creditor.  As  between 
the  partners  themselves,  I  see  no  reason 
to  make  any  distinction  in  their  rights, 
whether  they  are  dormant  or  not;  but  as 
to  the  public,  it  is  not  only  highly  proper, 
but  necessary,  to  prevent  injustice  towards 
creditors,  that  this  difference  should  be 
observed."  The  weight  of  authority, 
however,  is  against  the  case  last  cited ; 
and  hence  it  would  seem  to  follow,  that 
if  the  partnership  equity,  as  between  the 
individual  partners,  was,  from  any  cause, 
to  cease,  the  preferred  lien  of  the  joint 
creditors,  would  also  expire  ;  and  this  we 
find  to  be  the  fact,  for,  where  one  partner, 
there  being  two,  sells  his  interest  to  the 
other,  the  lien  of  the  joint  creditors  is 
gone :  Glenn  v.  Gill,  2  Md.  15  ;  Dunham  v. 
Hanna,  18  Ind.  270  ;  Doner  v.  Stauffer, 
1  Penna.  R.  198;  Cooper's  Ap.,  26  Penn. 
St.  262;  Vandike's  Ap.,  57  Id.  9;  but  this 
has  been  doubted  :  see  Conroy  v.  Woods, 
13  Cal.  626.  Where  partnership  property 
•was  sold  on  separate  executions  against 
the  individual  partners,  at  the  same  time, 
by  a   joint  sale,  it   leaves    the    interests 


standing  in  the  proceeds,  as  it  existed  in 
the  property,  at  the  time  of  the  levy: 
Cooper's  Ap.,  26  Penn.  St.  262  ;  Vandike's 
Ap.,  57  Id.  9  ;  Doner  v.  Stauffer,  1  Penna. 
R.  198. 

Joint  creditors  may,  however,  resort  to 
the  separate  property  of  the  individual 
partners,  before  the  payment  of  the  separ- 
ate creditors,  for  there  is  no  subsisting 
equity  to  interfere  with  their  claim,  as 
was  held  in  the  case  of  Allen  et  al.  v. 
Wells  et  al.,  22  Pick.  455.  "  It  is  urged, 
however,  on  the  part  of  the  defendants, 
that  as  this  court,  as  a  court  of  law,  have 
long  since  recognised  the  principle,  that 
an  attachment  of  the  goods  of  a  partner- 
ship, by  a  creditor  of  one  of  the  partners, 
is  not  valid  as  against  an  after  attachment 
by  a  partnership  creditor,  it  should  also 
adopt  the  converse  of  the  proposition, 
giving  a  like  preference  to  separate  cred- 
itors in  respect  of  the  separate  property. 
But  we  think  that  there  is  a  manifest  dis- 
tinction in  the  two  cases.  The  restriction 
upon  separate  creditors  as  to  the  partner- 
ship property,  arises  not  merely  from  the 
nature  of  the  debt  attempted  to  be  secured, 
but  also  from  the  situation  of  the  pro- 
pertj'  proposed  to  be  attached.  In  such  a 
case  a  distinct  moiety  or  other  proportion, 
cannot  be  taken  and  sold,  as  one  partner 
has  no  distinct  separate  property  in  the 
partnership  effects.  His  interest  embraces 
only  what  remains  upon  the  final  adjust- 
ment of  the  partnership  concerns.  But 
on  the  other  hand,  a  debt  due  from  the 
copartnership,  is  the  debt  of  each  member 
of  the  firm,  and  every  individual  member, 
is  liable  to  pay  the  whole  amount  of  the 
same,  to  the  creditor  of  the  firm.  In  the 
case  of  the  copartnership,  the  interest  of 
the  debtor  is  not  the  right  to  any  specific 
property,  but  to  a  residuum,  which  is  un- 
certain and  contingent,  while  the  interest 
of  one  partner  in  his  undivided  property, 
is  that  of  a  present  absolute  interest  in 
the  specific  property.  Each  separate 
member  of  the  copartnership,  being  thus 


OF   JOINT    OWNERSHIP    AND   JOINT    LIABILITY. 


313 


the  separate  estate  of  anj  sucli  partner,  instead  of  against  the  firm 
jointly  ',{g)  but  he  cannot  prove  against  both  together.(A)     The  Bank- 

[g)  Ex  parte  Hay,  15  Ves.  4. 

{h)  Ex  parte  Bevan,  10  Ves.  107  ;  Ex  parte  Husbands,  2  Glyn  &  Jam.  4. 


liable  for  all  debts  due  from  the  copartner- 
ship, and  no  objection  arising  from  any 
interference  with  the  rights  of  others — as 
joint  owners,  it  seems  necessarily  to  fol- 
low, that  his  separate  property  may  be 
well  adjudged  to  be  liable  to  be  attached, 
and  held  to  secure  a  debt  due  from  the 
copartnership  ;"  and  see  also,  Bardwell  v. 
Perry  et  al.,  19  Vt.  292  ;  Kuhne  v.  Law, 
14  Rich.  18,  and  the  cases  subsequentlj' 
cited  ;  but  see  to  the  contrary,  Jarvis  et 
al.,  Admrs.,  v.  Brooks  et  al.,  Admrs.,  1 
Fost.  141.  Where,  however,  a  firm  is 
bankrupt,  or  insolvent,  or  a  voluntary  as- 
signment for  the  benefit  of  creditors  has 
been  made,  or  there  are  other  circum- 
stances necessarily  causing  an  application 
of  the  principles  of  equity,  the  separate 
property  is  to  be  first  applied  to  the  pay- 
ment of  the  individual  creditors,  before 
the  partnership  creditors  can  resort  to  it, 
and  under  such  circumstances  the  rule  is, 
that  in  cases  of  distribution,  partnership 
funds  are  first  applicable  to  partnership 
debts,  and  private  funds  to  private  debts : 
Woodrob  v.  Ward,  Exrs.,  3  Desauss.  203; 
Hall  V.  Hall,  2  McC.  Ch.  302  ;  Tunno  v. 
Trezevant,  2  Desauss.  270 ;  Egbert  et 
al.  V.  Wood  et  al.,  3  Paige  Ch.  517  ;  Murril 
et  al.  V.  Neill  et  al.,  8  How.  414  ;  Emanuel 
V.  Bird,  Admr.,  19  Ala.  596  ;  McCulloch  v. 
Dashiell,  1  Har.  &  G.  96;  Cleghorn  v. 
The  Insurance  Bank  of  Columbus,  9  Geo. 
319;  Payne  v.  Matthews,  6  Paige  Ch.  20; 
Jackson  v.  Cornell  et  al.,  1  Sandf.  Ch. 
348  ;  Wilder  et  al.  v.  Keeler  et  al.,  3  Paige 
Ch.  167 ;  Bell  et  al.,  Exrs.,  v.  Newman, 
Admr.,  5  S.  &  R.  78  ;  Black's  Ap.,  44  Penn. 
St.  509;  Walker  v.  Eyth,  25  Id.  216; 
Tingizer's  Ap.,  28  Id.  524;  Crooker  v. 
Crooker,  46  Maine  250 ;  Treadwell  v. 
Brown,  41  N.  H.  12  ;  Toombs  v.  Hill,  28 
Geo.  371  ;  Tillinghast  v.  Champlin,  4  R.  I. 
173;  Van  Wagner  v.  Chapman,  29  Ala. 
172  ;  Pahlman  v.  Graves,  26  111.  405  ;  Dean 
V.  Phillips,  17  Ind.  406 ;  Barcroft  v.  Snod- 


grass,  1  Cold.  430;  Mittnight  v.  Smith,  2 
Green  (N.J.)  259;  McCormick's  Ap.,  55 
Penn,  St.  252  ;  and  in  Emanuel  v.  Bird, 
Admr.,  supra,  it  was  held,  that  when  sur- 
viving partners  are  insolvent,  and  there  is 
■no  joint  fund  to  which  the  partnership 
creditors  may  resort,  they  are  entitled  to 
share  in  the  assets  of  the  deceased  partner 
pari  passu  with  his  separate  creditors;  and 
see  McCulloch  v.  Dashiell,  1  Har.  &  G.  96 ; 
Ex  parte  Jewett,  16  Am.  L.  Reg.  291  ;  s.  c, 
1  B.  R.  130 ;  in  which  last  case  there  were 
both  individual  and  firm  creditors,  but  in- 
dividual assets  only,  which  mainly  consist- 
ed of  goods  which  had  been  purchased  by 
the  bankrupt  from  the  firm  on  its  dissolu- 
tion, prior  to  his  bankruptcy,  and  were 
principally  the  same  goods  in  the  purchase 
of  which  the  partnership  debts  had  been  in- 
curred, the  same  principle  of  distributioa» 
was  applied ;  but  in  general,  in  bankruptcy, 
where  there  are  both  joint  and  separate 
debts  proved,  on  a  separate  petition,  the 
joint  creditors  are  not  entitled  to  partici- 
pate in  the  distribution  of  the  assets, 
until  the  separate  creditors  are  paid  :  Ex 
parte  Byrne,  16  Am.  L.  Reg.  499  ;  s.  c. 
1  B.  R.  122  ;  where,  however,  a  firm 
creditor,  held  the  notes  both  of  the  firm 
and  of  the  individual  partners,  for  a  firm 
debt,  it  was  held,  that  he  was  entitled  to 
prove  his  claim  on  the  firm  notes,  against 
the  joint  estate,  and  on  the  individual 
notes,  against  the  separate  estates :  Mead 
V.  Bk.  of  Fayetteville,  16  Am.  L.  Reg.  818; 
s.  c.  2  B.  R.  65.  An  obligee  in  a 
joint  and  several  bond,  given  by  the  mem- 
bers of  a  firm,  is  entitled  to  dividends  out 
of  the  individual  assets,  the  firm  and  its 
several  members  having  been  adjudged 
bankrupt :  Bigelow  2  B.  R.  121. 

Where  a  partnership  was  dissolved  by 
mutual  consent,  one  partner  retaining  the 
stock  of  goods,  and  purchasing  other 
goods  from  time  to  time,  and  continuing  the 
business,  and  both  partners  were  at  different 


313 


OF    PERSONAL   ESTATE    GENERALLY. 


ruptcy  Act,  1869.  provides  that  where  joint  and  separate  properties  are 
r*-^14.1  being  administered,  dividends  of  the  joint  *and  separate  pro- 
perties  shall,  suhject  to  any  order  to  the  contrary  that  may  be 
made  by  the  court  on  the  application  of  any  person  interested,  be 
declared  together,  and  the  expenses  of  and  incident  to  such  dividends 
shall  be  fairly  apportioned  by  the  trustee  between  the  joint  and  separate 
properties,  regard  being  had  to  the  work  done   for  and  the  benefit  re- 


times subsequently  adjudorcd  bankrupts, 
such  stock  of  goods  must  be  regarded  as 
belonging  to  the  individual  estate  of  the 
partner,  who  continued  the  business,  and 
primarily  liable  to  pay  his  individual  debts, 
before  any  portion  can  be  applied  to  pay  the 
debts  of  the  partnership  :  Montgomery,  3 
B.  R.  109 ;  but  see  Downing,  Id.  182, 
where  it  was  held  in  a  similar  case,  where 
there  was  no  solvent  partner,  and  no 
firm  property,  that  the  creditors  of  the 
firm,  as  well  as  the  individual  creditors  of 
one  of  the  partners,  who  had  assumed  the 
payment  of  the  firm  debts,  were  entitled 
to  share  pari  passu  in  the  estate  of  such 
•partner,  and  that  assets  were  to  be  mar- 
shalled between  the  firm  creditors  and  the 
separate  creditors  of  the  partners,  only 
where  there  are  firm  and  separate  assets, 
and  proceedings  are  instituted  against  the 
firm,  and  the  individual  members,  as 
provided  in  section  36  of  the  Bankrupt 
Act. 

A  joint  creditor  having  security  on  the 
separate  estate,  may  prove  against  the 
joint  estate,  without  relinquishing  his  se- 
curity— may  prove  his  whole  claim  against 
both  estates,  and  receive  a  dividend  from 
each,  but  so  as  not  to  receive  more  than 
the  full  amount  of  his  debt  from  both 
sources  :  Howard,  4  B.  R.  185. 

Where  one  of  the  partners  sells  his 
interest  in  the  concern  to  his  copartner, 
taking  his  note  therefor,  and  the  latter 
becomes  a  bankrupt,  leaving  some  of  the 
notes  unpaid,  the  former  cannot  receive  a 
dividend  until  all  the  firm  debts  have 
been  paid  :  Jewett,  1  B.  R.  131.  Where 
the  original  consideration  of  a  claim 
passed  to  a  partnership,  but  the  obliga- 
tions given  for  the  same  were  executed  by 
the    individual   members    of    a    firm    as 


such,  the  creditors  holding  such  obliga- 
tions are  entitled  to  dividends  out  of  the 
separate  estates  :  Bucyrus  Machine  Co.,  5 
B.  R.  303.  A  joint  request  made  by  the 
individual  members  of  a  firm,  soliciting  B. 
to  become  a  surety  of  one  of  them,  in  au 
administration  bond,  does  not  create  a 
liability  of  the  firm,  and  is  not  provable 
against  the  partnership  in  bankruptcy : 
Forsyth  v.  Woods,  5  B.  R.  78.  The 
United  States  has  not  a  preferred  claim 
against  the  partnership  estate  of  sureties 
in  a  revenue  bond,  signed  by  said  sureties 
individually,  but  the  debts  created  by  the 
breach  of  the  condition  of  such  a  bond 
are  individual  debts,  and  such  preference 
may  be  allowed  against  the  respective 
separate  estates  of  such  sureties  :  Webb, 
2  B.  R.  183. 

The  mere  insolvency  of  a  firm  is  suffi- 
cient to  defeat  an  attachment  made  by 
a  creditor  of  one  of  the  firm,  although 
the  joint  creditors  have  commenced  no 
action  for  the  recovery  of  their  debts : 
Commercial  Bank  v.  Wilkins,  9  Maine 
28  ;  but  in  New  York,  by  statute,  even 
in  cases  of  insolvency,  &c.,  a  joint  cred- 
itor may  proceed  against  the  separate 
property  of  an  absconding  debtor  :  In  the 
matter  of  Chipman,  14  Johns.  217  ;  In 
the  matter  of  Smith,  16  Id.  102  ;  Bobbins 
et  al.  V.  Cooper  et  al.,  6  Johns.  Ch.  186  ; 
and  see  also,  Dahlgreen,  Admr.  v.  Dun- 
can et  al.,  7  Sm.  &  M.  280. 

In  the  case  of  BrinkerhofiF  v.  Marvin,  5 
Johns.  Ch.  320,  it  was  held,  that  "  where 
a  creditor  has  separate  judgments  against 
each  of  two  partners,  the  partnership  pro- 
perty will  be  bound,  to  the  same  extent  as 
if  the  amount  of  both  judgments  had  been 
included  in  a  joint  judgment  for  the  whole, 
against  both  parties." 


OF   JOINT   OWNERSHIP   AND   JOINT    LIABILITY.  314 

ceived  by  each  property.(ey  The  rule  that  the  joint  assets  of  the  firm 
are  in  the  first  place  liable  to  the  partnership  debts  applies  equally  where 
there  has  been  a  change  in  the  partnership  previous  to  the  bankruptcy. 
The  stock  handed  over  to  the  new  firm  is  primarily  liable  to  all  the  debts 
incurred  by  them  ;  and  the  creditors  of  the  old  firm  must  first  have  recourse 
to  such  assets,  if  any,  as  may  still  belong  to  the  old  firm,  and  cannot 
touch  the  property  of  the  new  partnership  till  all  its  creditors  have  been 
fully  paid. (A;)  The  addition  or  withdrawal  of  a  partner  to  or  from  a  firm 
in  difficulties  may  thus  occasion  serious  detriment  to  its  creditors. 

It  has  recently  been  decided  that  the  share  of  a  dormant  partner  in 
the  assets  of  the  partnership  is  not  goods  in  the  order  or  disposition  of 
the  acting  partner  with  the  consent  of  the  true  owner  thereof,  so  as  to 
pass  to  his  assignees,  or  now  to  the  trustee  for  his  creditors,  in  the  event 
of  his  bankruptcy. (Z) 

The  liability  to  the  debts  of  a  partnership  may  be  incurred  by  being  an 
ostensible  partner,  although  no  share  of  the  profits  be  received.  Thus, 
if  a  person  allow  his  name  to  be  used  as  one  of  the  firm,{7?2)  or  to  be  painted 
*over  the  door  of  a  shop,(w)  he  will  be  liable  to  the  debts  of  the  r^oic-i 
firm ;  for  credit  may  thus  be  given  to  the  firm  on  the  strength 
of  his  character  as  a  solvent  person.  On  the  same  principle,  if  a  person 
have  once  been  known  to  be  a  partner  in  the  firm,(o)  his  liability  to  its 
debts  will  continue  after  his  withdrawment,  unless  he  takes  proper  means 
to  inform  the  creditors  that  he  has  ceased  to  be  a  partner. (jo)  But  the 
circumstance  of  the  name  of  a  deceased  partner  remaining  in  the  firm 
will  not  render  his  estate  liable  to  the  debts  of  the  survivors. (^)     And  if 

(i)  Stat.  32  &  33  Vict.  c.  71,  s.  104.  See  the  repealed  stat.  24  &  25  Vict.  c.  134, 
s.  177. 

(k)  Ex  parte  Freeman,  Buck  471  ;  Ex  parte  Fry,  1  Glyn  &  Jam.  96  ;  Ex  parte  Janson, 
3  Madd.  229 ;  Ex  parte  Sprague,  4  De  G.,  M.  &  G.  8G6. 

(l)  Reynolds  v.  Bowley,  L.  R.  2  Q.  B.  474  ;  8  B.  &  S.  406  ;  see  ante,  p.  54. 

(m)  Parkin  v.  Carruthers,  3  Esp.  248  ;   Young  v.  Aztell,  cited  2  H.  Black.  242. 

(n)  See  M'lver  v.  Humble,  16  East  169,  174. 

(o)  Evans  v.  Drummond,  4  Esp.  89  ;  Brooke  v.  Enderby,  2  B.  &  B.  70  (E.  C.  L.  R. 
vol.  6) ;  4  Moore  501 ;  Carter  v.  Whalley,  1  B.  &  Ad.  11  (E.  C.  L.  R.  vol.  20j, 

(p)  Godfrey  v.  Turnbull,  1  Esp.  371  ;  M'lver  v.  Humble,  16  East  169. 

(q)  VuUiamy  v.  Noble,  3  Mer.  614  ;  Webster?;.  Webster,  3  Swanst.  490,  n. 

1  By  the  thirty-sixth  section  of  the  Act  the  creditors  of  the  co-partnership,  and  the 

of  Congress  of  the  second  of  March,  1867,  net  proceeds  of  the  separate  estate  of  each 

it  is  provided,  that  the  assignee  "  after  de-  partner,  shall  be  appropriated   to    pay  his 

ducting  out  of  the  whole  amount  received  separate     creditors,"    &c.  :    2     Brightly's 

the    whole   of  the  expenses  Dig.,  p.  92,  §  81.     See  also    ante,   p.   132, 

and  disbursements,  the  net  proceeds  of  the  note  2  i. 
joint  stock  shall  be  appropriated  to  pay 


315  OF   PERSONAL   ESTATE   GENERALLY. 

a  trailer  tliroct  by  his  Avill  that  his  trade  shall  he  carried  on  by  his  exe- 
cutor, the  executor,  who  ostensibly  carried  on  the  trade,  will  be  liable  for 
the  debts  he  may  thereby  incur  as  fully  as  if  he  were  carrying  on  the 
trade  for  his  own  benefit  ;(r)  but  so  much  only  of  the  estate  of  the  testa- 
tor will  be  liable  to  such  debts  as  he  may  have  directed  to  be  employed 
in  the  business.(s)  The  rest  of  the  testator's  estate  is  held  to  be  exempt, 
on  the  ground  of  the  great  inconvenience  which  would  arise  from  holding 
it  liable  after  its  distribution  amongst  the  legatees.  But  in  strict  principle, 
this  exemption  is  at  variance  with  the  rule  next  stated,  that  a  liability  is 
incurred  by  any  participation  in  the  profits,  which  rule,  however,  has 
now,  as  we  shall  presently  see,  been  abolished  by  act  of  parliament. 

r*q-ip-|  *A  liability  to  the  debts  of  a  partnership  was  until  recently 
'-  -'  incurred  by  a  participation  in  the  profits' although  the  circum- 
stance of  such  participation  might  be  unknown  to  the  creditors. («)  It 
was  enough  that  the  business  was  carried  on  on  behalf  of  the  participa- 
tor.(;()  Thus,  if  a  person  placed  money  in  a  partnership,(2;)  or  left  it 
there  on  retiring,(?/)  with  a  stipulation  to  have  a  compensation  for  it, 
under  whatever  name,  subject  to  abatement  or  enlargement  as  the  profits 
might  fluctuate,  he  was  liable  as  a  partner.  If,  however,  he  left  no  mo- 
ney in  the  concern,  but  was  to  receive  a  compensation  for  his  services,  or 
otherwise,  a  nice  distinction  was  then  drawn  between  taking  a  share  of 
the  profits  as  such  and  taking  a  per-centage  upon,  or  a  salary  varying 
with,  the  profits.  He  who  took  a  share  of  the  profits  as  such  was  liable 
as  a  partner  \{z)  but  he  who  took  an  equivalent  in  the  shape  of  per- 
centage or  salary,  though  varying  with  the  profits,  escaped  the  lia- 
bility.(a)^     And  if  a  trading  concern  were  carried  on  for  the  benefit  of 

(r)  10  Ves.  119.  And  at  law  he  will  be  liable,  though  his  name  do  not  appear: 
Wightman  v.  Townroe,  1  M.  &  Selw.  412. 

(5)  Ex  parte  Garland,  10  Ves.  110;  Ex  parte  Richardson,  Buck  202;  Cutbush  v. 
Cutbush,  1  Beav.  184;  Re  Butterfield,  11  Jurist  955;  Kirkman  v.  Booth,  11  Beav.  273  ; 
M'Neillie  v.  Acton,  4  De  G.,  M.  &  G.  744. 

(0  Beckham  v.  Drake,  9  M.  &  W.  79  ;   11  M.  &  \V.  315. 

(m)  Kilshaw  v.  Jukes,  3  B.  &  S.  847  (E.  G.  L.  R.  vol.  113). 

{x)  Grace  v.  Smith,  2  Wm.  Black.  998,  1001 ;  Waugh  v.  Carver,  2  H.  Black.  235. 

{y)  Re  Colbeck,  Buck  48. 
•      (z)  Ex  parte  Rowlandson,  1  Rose  89,  91  ;  Barry  v.  Nesham,  3  C.  B.  641  (E.  C.  L.  R. 
vol.  54)  ;  Heyhoe  i-.  Burge,  9  C.  B.  431  (E.  C.  L.  R.  vol.  C7)  ;  see,  however,  Rawlinson 
V.  Clarke,  15  M.  &  W.  292. 

{a)  Ex  parte  Hamper,  17  Ves.  403  ;  Pott  v.  Eyton,  3  C.  B.  32  (E.  C.  L.  R.  vol.  54)  ; 
Stocker  v.  Brockelbank,  3  Macn.  &  G.  250. 


1  Individuals  who  have  neither  a  mutual     nor  are  mutually  to  share  the  losses  that 
interest  in  the  capital  invested  in  business,     may  happen,  cannot  be  partners  :  Lowry  v. 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY. 


316 


creditors,  the  creditors  were  not,  from  the  mere  circumstance  of  their 
debts  being  paid  out  of  the  profits,  liable  as  partners  for  the  debts  incur- 
red.(6) 

(6)  Wheatcroft  v.  Hickman,  H.  of  L.,  9  C.  B.  N.  S.  47  (E.  C.  L.  R.  vol.  99). 


Brooks,  2  McCord  421 ;  but,  where  the 
right  of  a  person  to  receive  profits,  pro- 
ceeds from  his  having  an  interest  in  the 
capital,  it  will  constitute  him  a  partner  : 
Ogden,  Admr.,  v.  Astor  et  al.,  4  Sandf.  S. 
C.  311;  Vassar  et  al.  v.  Camp  et  al.,  14 
Barb.  341 ;  it  is  not  essential,  however, 
that  one  should  have  a  property  in  the 
capital,  to  make  him  such :  Hodges  v. 
Daves  &  Co.,  6  Ala.  217;  Dob  et  al.  v. 
Halsey,  16  Johns.  34 ;  for  a  partnership 
may  be  formed  by  capital  furnished  by 
one,  and  skill  and  labor  by  another,  pro- 
vided the  profits  be  divided  between  them, 
not  as  a  compensation  to  the  one  who  has 
bestowed  his  skill  and  labor,  but  as  pro- 
fits :  Everett  V.  Coe,  5  Denio  180  ;  Simpson 
et  al.  V.  Feltz,  1  McCord  218;  Ward  v. 
Thompson,  22  How.  U.  S.  330  ;  Gill  v. 
Geyer,  15  Ohio  St.  399  ;  neither  is  it  neces- 
sary, in  order  to  be  partners,  that  all 
should  have  an  equal  interest:  Hodgman 
V.  Smith,  13  Barb.  302  ;  Motly  v.  Jones  et 
al.,  3  Ired.  Ch.  144;  but,  the  law  will  pre- 
sume their  interests  are  equal  unless  the 
contrary  is  shown  :  Roach  v.  Perry,  16  111. 
37  ;  Stein  v.  Robertson,  30  Ala.  286  ;  Moore 
ij.  Bare,  11  Iowa  198;  Griggs  v.  Clark,  23 
Cal.  427. 

And  one  who  contracts  for  a  share  of 
the  profits  of  a  concern,  as  profits,  will  be 
a  partner  :  Chase,  Admr.,  v.  Barrett  et  al., 

4  Paige  Ch.  148;  Price  &  Co.  d.  Alexander 
&  Co.,  2  Greene  127;  Denny  etal.  t).  Cabot 
et  al.,  6  Metcf.  89 ;  Judson  et  al.  v.  Adams, 
&c.,  8  Cush.  562  ;  Griffith  &  Co.  v.  Buffam 
et  al.,  22  Vt.  181 ;  Heimstreet  v.  Howland, 

5  Denio  68  ;  Wadswortli  v.  Manning  et  al., 
4  Md.  59  ;  Barrett  v.  Swann  et  al.,  17  Maine 
180  ;  Doak  v.  Swann  et  al.,  8  Id.  170  ;  Cox 
et  al.  I'.  Delano,  3  Dev.  89  ;  Holt  &  Co.  v. 
Kernodle,  1  Ired.  202  ;  Brockaway  v.  Bur- 
nap,  16  Barb.  309  ;  Catskill  Bank  v.  Gray, 
14  Id.  472  ;  Belknap  et  al.  v.  Wendell,  1 
Post.  175;  Pattison  et  al.  v.  Blanchard,  1 


Seld.  180;  Hodgman  v.  Smith,  13  Barb. 
302  ;  Emanuel  v.  Draugher  et  al.,  14  Ala. 
306;  Hodges  v.  Dawes  &  Co.,  6  Id.  217  ; 
Simpson  et  al.  v.  Feltz,  1  McCord  Ch.  218.; 
Solomon  v.  Solomon,  Exrx.,  2  Kelly  18 ; 
Bowman  et  al.  v.  Bailey,  10  Vt.  170; 
Boardman  v.  Keeler  et  al.,  2  Id.  65  ;  Kel- 
logg V.  Griswold,  12  Vt.  291  ;  Gregory  et 
al.  V.  Dodge  et  al.  14  Wend.  593  ;  Noyes  v. 
Cushman  et  al.,  25  Vt.  396  ;  a  community 
of  profits,  therefore,  as  a  compensation,  or 
commission,  and  not  joined  with  a  parti- 
cipation in  the  losses,  will  not  make  a 
partnership  :  Fitch  v.  Hail,  25  Barb.  13 ; 
Polk  V.  Buchanan,  5  Sneed  721 ;  Williams 
V.  Soulter,  7  Clarke  435  ;  but  it  seems  that, 
as  regards  third  persons,  the  mere  percep- 
tion of  profits  is  sufficient  to  make  a  part- 
nership :  Bromley  v.  Elliott,  38  N.  H.  287  ; 
Fitch  V.  Harrington,  13  Gray  468;  Wait  v. 
Brewster,  31  Vt.  516;  Chapman  v.  Deve- 
reaux,  32  Vt.  616;  Edwards  v.  Tracy,  62 
Penn.  St.  374;  Berthold  v.  Goldsmith,  24 
How.  U.  S.  536  ;  in  other  words,  there  will 
be  a  copartnership,  when  each  has  such 
an  interest  in  the  profits  as  will  entitle  him 
to  an  account,  and  give  him  a  specific  lien 
on  the  fund  for  the  payment  of  the  balance 
of  his  account:  Champion  v.  Bostwick,  18 
Wend.  580  ;  s.  c.  11  Id.  571 ;  Conkling  et 
al.  V.  The  Washington  University  et  al.,  2 
Md.  Ch.  Decs.  497  ;  Pierce,  Admr.  et  al.  v. 
Tiernan  etal.,  10  Gill  &  Johns.  253;  Hodges 
V.  Dawes  &  Co.,  6  Ala.  217  ;  Hodges  v.  Holl- 
man,  1  Denio  50  ;  Bowman  et  al.  v.  Bailey, 
10  Vt.  170  ;  McCauleyv.  Cleveland,  21  Mo. 
438  ;  Brigham  v.  Dana,  29  Vt.  1. 

Hence,  where  a  person  is  to  receive,  as 
wages,  a  compensation  graduated  accord- 
ing to  a  percentage  of  the  profits,  it  will 
not  make  him  a  partner:  Nutting  v.  Colt, 

3  Halst.  Ch.  539  ;  Perrine  v.  Hankinson,  6 
Halst.  181  ;  Ogden,  Admr.  v.  Astor  et  al., 

4  Sandf.  S.  C.  31 1 ;  Burkle  v.  Eckart,  1  Denio 
337 ;  Price  &  Co.  v.  Alexander  &  Co.,  2 


316 


OF    PERSONAL   ESTATE    GENERALLY. 


A  beneficial  change  has  now  been  made  by  the  act  to  amend  the  law 
of  partnersbip.(c)     This  act  provide8,(d)  that  the  advance  of  money  by 


(c)  Stat.  28  &  29  Vict.  c.  8G,  5th  July,  18C5. 


(d)  Sect.  1. 


Greene  427  ;  Ambler  v.  Beverly,  6  Vt. 
119;  Baxter  et  al.  v.  Rodman,  3  Pick. 
435;  Denny  et  al.  r.  Cabot  ct  al.,  6  Mete. 
89  ;  Dunham  v.  Clayton,  1  Penn.  St.  255  ; 
Potter  V.  Moses  et  al.,  1  R.  I.  430  ;  Bart- 
lett  V.  Jones,  2  Strobh.  471 ;  Coffin  v. 
Jenkins,  3  Story  108;  Clement  r.  Hadock, 
13  N.  H.  190;  Bowman  et  al.  v.  Bailey, 
10  Vt.  170;  Boardman  v.  Keeler  et  al., 
2  Id.  65 ;  Wilkinson  v.  Jett,  7  Leigh 
115;  Norment  v.  Hall,  1  Humph.  324; 
Kellogg  V.  Griswold,  12  Vt.  291 ;  Shrop- 
shire V.  Shepherd,  3  Ala.  733 ;  New- 
man et  al.  V.  Bean,  1  Fost.  93;  Rice  v. 
Austin,  17  Mass.  205;  Vanderburgh  v. 
Hall  et  al.,  20  Wend.  70;  Emanuel  v. 
Draugher  et  al.,  14  Ala.  30jG  ;  Hodges  v. 
Dawes  &  Co.,  6  Id.  217;  Loomis  v.  Mar- 
shall, 12  Conn.  77;  Ross  v.  Drinker,  2 
Hall  415;  Thompson  v.  Snow  et  al.,  4 
Greenlf.  264 ;  Turner  v.  Bissell  et  al.,  14 
Pick.  194  ;  Moore  v.  Smith,  19  Ala.  774; 
Reed  v.  Murphy  et  al.,  2  Greene  574 ; 
Champion  et  al.  v.  Bostwick,  18  Wend. 
580  ;  s.  c.  11  Id.  571 ;  Bull  v.  Schuberth,  2 
Md.  38 ;  Hallett  v.  Desbau,  14  La,  Ann.  529 ; 
Smith  V.  Perry,  5  Dutch.  74;  and  it  has 
been  held,  that  an  agreement  between  two 
houses,  to  share  commissions  on  sales  of 
goods,  forwarded  by  one  to  the  other,  will 
not  constitute  a  partnershi]) :  Pomeroy  v. 
Sigerson,  22  Mo.  177;  and  so  of  two  car- 
riers to  share  freight :  Merrick  v.  Gordon, 
20  N.  Y.  93. 

That  there  is  a  distinction  between  a 
sharing  of  the  profits  indefinitely,  and  the 
taking  of  a  percentage  of  the  profits,  is 
undoubtedly  the  law  of  this  country,  as  it 
is  also  that  of  England,  but  it  is  a  matter 
of  great  difficulty  to  determine  where  the 
profits  as  wages  end,  and  the  profits  as 
profits  begin  :  thus  Wilde  J.,  in  Blanchard 
V.  Coolidge,  22  Pick.  154,  says:  "But 
there  is  a  distinction  between  an  agree- 
ment to  share  the  profits  of  a  trade  indefi- 
nitely, as  profits,  and  an  agreement  with 


an  agent  to  allow  him  a  certain  share  of 
the  profits,  as  a  compensation  for  his  ser- 
vices." So,  too,  this  delicate  difference  is 
commented  upon  by  Chief  Justice  Gibson, 
in  Miller  v.  Bartlet  et  al.,  15  S.  &  R. 
137,  in  the  following  words:  "How  a 
commission  on  profits  can  be  distinguished 
from  an  interest  in  the  profits,  as  such,  I 
am  al  loss  to  comprehend.  The  profits 
cannot  be  ascertained  before  the  partner- 
ship account  is  settled,  and  then  a  party, 
under  claim  to  commissions,  is  entitled  to 
what?  To  a  compensation  equal  in 
amount  to  so  many  hundredths  of  the  sum 
of  the  profits.  He  is  said  not  to  have  a 
specified  interest  in  the  profits  ^as  such. 
He  has,  indeed,  no  lien  or  specific  de- 
mand on  the  particular  fund  as  a  corpus; 
but  neither  has  a  partner  who  is  admitted 
to  be  so ;  profits  being  an  incorporeal 
essence,  and  without  specific  existence 
before  they  are  received  and  enjoyed.  It 
is  impossible  to  discover  any  difference, 
but  what  is  found  in  the  terms,  between  a 
dividend  and  a  commission ;  yet  this 
difference,  flimsy  as  it  is,  seems  to  be 
firmly  established."  And  again,  in  Dun- 
ham V.  Rogers,  1  Penn.  St.  262,  the  same 
judge  remarks  :  "  It  has  been  so  often  and 
so  invariably  ruled  in  England  and  America 
that  a  commission  on  profits  is  not  such  an 
interest  in  the  concern  as  constitutes  part- 
nership, that  the  point  is  at  rest.  What 
staggers  the  mind,  in  this  instance,  is  the 
apparent  shallowness  of  the  distinction, 
when  it  is  considered,  that  a  commission 
of  fifty  per  cent,  is  no  more  nor  less  than 
an  equal  division  of  the  profits ;  but  it 
must  not  be  forgotten  that  the  distinction 
is  an  arbitrary  one,  resting  on  authority, 
not  principle,  and  that  whatever  be  the 
proportion,  the  relation  produced  by  a 
compensation,  in  the  form  of  a  commission, 
is  in  every  instance  the  same."  And  see 
the  case  of  Pierson  v.  Steinmyer  et  al.,  4 
Richard.  309,  where  Judge  Wardlow  says  : 


OF   JOINT    OWNERSHIP   AND   JOINT   LIABILITY. 


316 


way  of  loan  to  a  person  *engaged  or  about  to  engage  in  any  'r*q-i7n 
trade  or  undertaking,  upon  a  contract  in  writing  with  such  per- 


"An  agent  might  stipulate,  that  he  might 
receive  for  his  services,  a  sum  equal  to  a 
certain  share  of  the  profits  of  a  house 
owned  by  neighbors  of  his  employer.  .  .  . 
As  profits  usually  arise  in  dollars,  there 
is,  of  course,  frequent  confusion  between 
a  share  of  the  profits  as  profits,  and  a  sum 
measured  by  a  share  of  the  profits  ;  and 
the  distinction  becomes  shadowy,  difficult 
of  application,  and  liable  to  be  perverted 
to  purposes  of  fraud  and  unfair  dealing." 

An  agreement  that  each  party  shall  pay 
his  own  losses,  will  not  constitute  a  part- 
nership, for  they  must  mutually  share 
each  other's  losses ;  but,  under  such  a 
state  of  circumstances,  they  may  be  liable 
to  third  persons,  as  partners  :  Heckert  v. 
Fegely,  6  W.  &  S.  139  ;  and  so  he  will  be 
a  partner  as  to  third  persons,  who  having 
advanced  money  to  assist  a  certain  enter- 
prise, has  agreed  to  share  in  the  losses, 
but  not  in  the  profits,  though  not  a  part- 
ner as  between  himself  and  the  others 
engaged  in  the  enterprise  :  Moss  v.  Jerome, 
10  Bosw.  220;  but  a  partnership  inter  sese 
may  exist,  where  a  certain  specified  class 
of  losses  are  to  be  severally  and  not  mu- 
tually borne  :  Meaher  v.  Cox,  37  Ala.  201. 
Where  upon  agreement,  one  was  to  fur- 
nish a  circular  saw-mill  and  hands,  and 
stock  to  saw,  and  another  was  to  fur- 
nish logs  and  feed  for  the  hands  and 
stock,  and  the  lumber  was  to  be  divided 
equally  between  them,  it  was  held  that 
they  were  not  partners  :  Stoallings  v.  Baker 
et  al.,  16  Mo.  481  ;  but,  "  where  two  per- 
sons agree  to  burn  lime  on  shares,  one  to 
fill  the  kiln  with  stones,  and  the  other  to 
burn  the  kiln,  and  furnish  the  necessary 
wood  for  the  purpose,  the  lime  to  be 
eqally  divided  between  them,  it  was  held 
that  a  technical  partnership  existed 
between  the  parties."  See,  also,  Jones  v. 
McMichael,  12  Rich.  170;  Fail  v.  McKee,  36 
Ala.  61. 

What  constitutes  a  partnership  is  a 
question  of  law,  whether  one  exists,  is  a 
question  of  fact :  Gilpin  v.  Temple  et  al., 


4  Harring.  192.  But  a  partnership  may 
exist  as  to  third  persons,  where  it  does  not 
exist  between  the  parties  themselves :  thus, 
in  Hazzard  v.  Hazzard,  1  Story  273, Judge 
Story  uses  the  following  language:  "It  is 
necessary  to  take  notice  of  a  well-known 
distinction  between  cases,  where,  as  to 
third  persons,  there  is  held  to  be  a  part- 
nership, and  cases,  where  there  is  a  part- 
nership between  the  parties  themselves. 
The  former  may  arise  between  the  parties, 
by  mere  operation  of  law,  against  the  in- 
tention of  the  parties;  whereas,  the  latter 
exists  only  when  such  is  the  actual  inten- 
tion of  the  parties.  Thus,  if  A.  and  B. 
should  agree  to  carry  on  any  business  for 
their  joint  profit,  and  to  divide  the  profits 
equally  between  them,  but  B.  should  bear 
all  the  losses,  and  should  agree  that 
there  should  be  no  partnership  between 
them ;  as  to  third  persons  dealing  with  the 
firm,  they  would  be  held  partners,  though 
inter  se,  they  would  be  held  not  to  be  part- 
ners." In  speaking  of  the  same  subject, 
Chief  Justice  Ruffin,  in  Holt  and  Co.  v. 
Kernodle,  1  Ired.  202,  remarks  :  "  As  to 
third  persons,  who  may  deal  with  the  firm, 
a  partnership  may  arise,  upon  a  principle 
of  public  policy,  so  as  to  bind  a  person 
for  all  the  liabilities  of  a  firm,  and,  indeed, 
make  him  a  party  to  all  its  contracts, 
.although  that  person  bring  into  the  busi- 
ness neither  effects  nor  services,  but 
merely  lend  his  name  as  a  partner,  or 
otherwise  hold  himself  out  to  the  world  as 

such The  ordinary  test,  however,  of 

a  person  being  a  partner,  is  his  participa- 
ting in  the  profits  of  the  business;  and  we 
believe,  there  can  be  no  instance  imagined, 
where  there  is  to  be  a  participation  in 
them,  as  profits,  in  which  every  person 
having  a  right  to  share  in  them,  is  not 
thereby  rendered  a  partner,  to  all  intents 
and  purposes.  It  is  so  between  the  parties 
themselves  ;  because  the  one  of  them  does 
not  look  to  the  other,  personally,  for 
restoring  to  him  his  capital,  or  remuner- 
ating him  for  his  labor  ;  but  each  looks  to 


317 


OF   PERSONAL   ESTATE   GENERALLY. 


son  that  the  lender  shall  receive  a  rate  of  interest  varying  with  the  profits, 
or  shall  receive  a  share  of  the  profits  arising  from  carrying  on  such  trade 
or  undertaking,  shall  not  of  itself  constitute  the  lender  a  partner  with 
the  person  or  persons  carrying  on  such  trade  or  undertaking,  or  render 
him  responsible  as  such.  And  no  contract  for  the  remuneration  of  a 
servant  or  agent  of  any  person  engaged  in  any  trade  or  undertaking,  by 
a  share  of  the  profits  of  such  trade  or  undertaking,  shall  of  itself  render 
such  servant  or  agent  responsible  as  a  partner  therein,  nor  give  him  the 


the  assets,  or  joint  fund,  for  those  purposes, 
and  ascertains  his  interest  by  taking  an 
account  of  the  concern.  Much  more 
does  sharing  in  the  profits  constitute  a 
partnership  as   to  the  rest  of  the  world, 

because the  party  takes  from  the 

creditors  a  portion  of  that  fund,  which  is 
the  proper  security  for  the  payment  of 
their  debts."  Again  in  the  case  of  Gill 
et  al.  V.  Kuhn,  6  S.  &  R.  337,  -which  was  a 
suit  between  partners,  it  was  said  by 
Chief  Justice  Gibson:  "That  there  is  a 
distinction  between  partnership  as  it  re- 
spects the  public,  and  partnership  as  it 
respects  the  parties,  is  an  elementary 
principle  of  this  branch  of  the  law,  so 
plain,  that  its  only  difficulty  is  its  applica- 
tion to  particular  cases.  Where  the 
agreement  is  silent,  there  is  often  room  to 
doubt  as  to  the  precise  relation  in  which 
the  parties  stand  to  each  other  ;  and  then 
a  joint  interest  in  the  stock  is  considered 
a  discriminative  circumstance  ;  but  where 
they  explicitly  declare  there  is  to  be  no 
partnership,  it  is  unnecessary  to  inquire 
further;  for  among  themselves,  the  law 
permits  them  to  determine  their  respective 
interests  by  their  own  stipulations  ;  it  is  a 
matter  with  which  third  persons  have  no 

concern Hence,  the  invoices,  bills  of 

sale,  circular  letter,  and  receipt-book, 
given  in  evidence  to  prove  that  a  joint 
business  had  been  carried  on,  which 
would  have  a  decisive  influence  on  a 
question  of  liability  to  third  persons, 
must  be  laid  out  of  the  case  here."  And 
Bee,  Kerr  v.  Potter,  6  Gill  404  ;  Sylvester 
et  al.  V.  Smith,  9  Mass.  119;  Coterill  v. 
Vandusen  et  al.,  22  Vt.  511;  Stearns  v. 
Haven  et  al.,  12  Id.  540;  Markham's  Exr. 
V.  Jones,  7  B.  Mon.  486  ;  Buckingham  v. 


Burgess  et  al.,  3  McL.  364;  Blanchard  v. 
Coolidge,  22  Pick.  154  ;  Heckert  v.  Fegely, 
6  W.  &  S.  139;  Kellogg  v.  Griswold,  12 
Vt.  291  ;  Osborne  v.  Brennan,  2  N.  & 
McCord  427  ;  Motley  v.  Jones  et  al.,  3  Ired. 
Ch.  144;  Bull  v.  Schuberth,  2  Md.  38; 
Pierson  v.  Steinmyer  et  al.,  4  Richard.  309 ; 
Cutter  V.  The  Estate  of  Thomas,  25  Vt. 
78  ;  Mathews  v.  Felch  et  al..  Id.  538  ; 
Dremem  et  al.  v.  House  &  Co.,  41  Penn. 
St.  30  ;  Grady  v.  Robinson,  28  Ala.  289 ; 
Shacklcford  v.  Smith,  25  Mo.  348  ;  Robin- 
son V.  Green,  5  Harring.  115  ;  Scranton  v. 
Rentfrow,  29  Geo.  341  ;  Athertont;.  Tilton, 
44  N.  H.  452  ;  Bigelow  v.  Elliott,  1  Cliff.  C. 
C.  28;  Sherrod  v.  Langden,  21  Iowa 
518  ;  Kirk  v.  Hartman,  53  Penn.  St.  97. 
Limited  partnerships,  however,  may  be 
formed,  in  almost  all  the  states,  in 
the  manner  directed  by  statute  ;  and  the 
special  partner,  in  such  a  partnership,  will 
not  be  liable  to  the  creditors  of  the  firm, 
to  a  greater  extent  than  the  amount  con- 
tributed by  him  to  the  company.  A 
limited  partnership  may  be  defined  as  a 
contract  by  which  one  person  or  partner- 
ship, agrees  to  furnish  another  person  or 
partnership,  a  certain  amount  either  in 
property  or  money,  to  be  employed  by 
the  person  or  partnership,  to  whom  it  is 
furnished,  in  his  or  their  own  name  or 
firm,  on  condition  of  receiving  a  share  in 
the  profits,  in  the  proportion  determined 
by  the  contact,  and  of  being  liable  to 
losses  and  expenses  to  the  amount  fur- 
nished, and  no  more. 

On  the  subject  of  limited  partnership, 
see  the  statutes  of  the  respective  states ; 
authority  for  the  formation  of  this  species 
of  partnership  being  thereby  given  in 
almost  every  state. 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY.  317 

rights  of  a  partner.(e)  And  no  person,  being  the  widow  or  child  of  the 
deceased  partner  of  a  trader,  and  receiving  by  way  of  annuity  a  portion 
of  the  profits  made  by  such  trader  in  his  business,  shall  by  reason  only 
of  such  receipt  be  deemed  to  be  a  partner  of  or  to  be  subject  to  any  lia- 
bilities incurred  by  such  trader.(/)  And  no  person  receiving  by  way  of 
annuity  or  otherwise  a  portion  of  the  profits  of  any  business,  in  consi- 
deration of  the  sale  by  him  of  the  goodwill  of  such  business,  shall,  by 
reason  only  of  such  receipt,  be  deemed  to  be  a  partner  of  or  be  subject 
to  the  liabilities  of  the  person  carrying  on  such  business. (</)  But  in  the 
event  of  any  such  trader  as  aforesaid  being  adjudged  a  bankrupt,  or 
taking  the  benefit  of  any  act  for  the  relief  of  insolvent  debtors,  or  en- 
tering into  an  arrangement  to  pay  his  creditors  less  than  twenty  shillings 
in  the  pound,  or  dying  in  insolvent  circumstances,  the  lender  of  any  such 
loan  as  aforesaid,  shall  not  be  entitled  to  recover  any  portion  of  his  prin- 
cipal, or  of  the  profits  or  interest  payable  in  respect  of  such  loan  ;  nor 
shall  any  such  vendor  of  a  goodwill  as  aforesaid  be  entitled  to  recover 
any  such  profits  as  aforesaid  until  the  claims  of  the  *other  cred-  r:(cq-|o-| 
iters  of  the  said  trader  for  valuable  consideration  in  money  or 
money's  worth  have  been  satisfied.(/t) 

"When  the  relation  of  partners  has  been  established  between  two  or 
more  persons,  either  ostensibly  or  by  participation  in  profit,  each  incurs 
liability  from  the  acts  and  dealings  of  the  other  in  the  ordinary  course 
of  business.  For  any  one  partner  may  buy,  sell(z)  or  pledge  goods  ;(A:) 
draw,(Z)  accept(7?i)  or  endorse(w)  bills  of  exchange  and  promissory  notes  ; 
give  guarantees, (o)  receive  moneys(j9)  and  release  or  compound  for 
debts(^)  in  the  name(r)  and  on  the  account  of  the  firm,  in  the  ordinary 
course  of  business.^     Each  partner  is  also  answerable  for  the  fraud  of  his 

(e)  Sect.  2.  (/)  Sect.  3. 

Iff)  Sect.  4.  {h)  Sect.  5. 

(i)  Hyatt;.  Hare,  Comb.  383;  Lambert's  Case,  Godbolt  244. 

{k)  Reid  v.  Hollinshead,  4  B.  &  C.  86T  (E.  C.  L.  R.  voL  10). 

{I)  Smith  V.  Jarvis,  2  Ld.  Raymond  1484 ;  Re  Clarke,  Ex  parte  Buckley,  14  M.  &  "W. 
469;   1  Phil.  562. 

(to)  Pinkney  v.  Hall,  1  Salk.  126  ;  1  Ld.  Raym.  175  ;  Lloyd  v.  Ashby,  2  B.  &  Ad.  23 
(E.  C.  L.  R.  vol.  22). 

(tj)  Swan  v.  Steele,  7  East  210  ;  Vere  v.  Ashby,  10  B.  &  C.  288  (E.  C.  L.  R.  voL  21). 

(o)  Ex  parte  Gurdom,  15  Ves.  286  ;  see  Halesham  v.  Young,  5  Q.  B.  833  (E.  C.  L.  R. 
voL  48). 

(p)  Duff  V.  East  India  Company,  15  Ves.  198,  213. 

(q)  Per  Lord  Kenyon,  4  Term  Rep.  519 ;  per  Best,  C.  J.,  10  Moore  393. 

(r)  Kirk  v.  Blurton,  9  M.  &  W.  284. 

1  One  partner  may  bind  the  firm  by  a  partnership  :  Weaver  v.  Tapscott,  9  Leigh 
parol  contract,  in  business  relating  to  the     432  ;  Sale  v.  Dishman's  Exrs.,  3  Id.  548  ; 


318 


OF   PERSONAL   ESTATE   GENERALLY. 


co-partner  in  any  matter  relating  to  the  business  of  the  partnership.(s) 
And  in  like  manner  notice  of  any  matter  relating  to   the  partnership,  if 

(«)  Willett  1'.  Chambers,  Cowp.  814  ;  Stone  v.  Marsh,  6  B.  &  C.  551  (E.  C.  L.  R..  vol. 
13) ;  Lavcll  v.  Hicks,  2  You.  &  Col.  481  ;  Blair  v.  Bromley,  5  Hare  542  ;  2  Phil.  354. 


McCullough    V.    Sommerville,    8   Id.    415; 
Doak  t'.  Swann   et  al.,  8   Maine    170;  The 
Man.    &    Mech.    Bank  t'.    Gore  et   al.,    15 
Mass.    81  ;  Boardman  t>.  Gore   et  al..    Id. 
339;  Galloway   i-.   Hughes  et  al.,   1   Bail. 
561;  Nichols  v.  Hughes  et  al.,  2   Id.   109; 
Livingston    v.    Roosevelt,    4   Johns.    2G5 ; 
Winship  v.  The  Bank  of  the  United  States, 
5  Peters  529  ;  Miller  v.  Consolidation  Bank, 
48  Penn.  St.  514 ;  Ihmsen  v.  Negley  et  al., 
25  Id.  297;  Fant  v.  "West,   10  Rich.   149; 
Kennebec  Co.  v.  Augusta  Ins.  and  Banking 
Co.,  6   Gray  204;  Babcock  v.  Stewart,   58 
Penn.  St.  179;  Hoskinson   v.  Eliot,  62  Id. 
393  ;  Storer  V.  Hinkley  et  al.,  Exrs.,  Kirby 
147 ;   but   "  the  purposes   for   which   the 
partnership  was  created,  and  the  extent  of 
the  authority  of  the  individual  members, 
is  not  to  be  limited  by  the   articles  under 
which  their  connection  was  formed,  but  is 
to  be  ascertained,  rather  from  the   char- 
acter  of  their   dealings,    and    manner   in 
which   they  hold   themselves  out  to  the 
world  ;"  hence,  in  the  case  of  Catlin  et  al., 
V.   Gilder's  Exrs.,   3   Ala.    544,  it   having 
been   testified    that    the   firm   of    Catlin, 
Peoples  &  Co.,  dealt  in  dry  goods  and  gro- 
ceries, and  were  in  the  habit  of  trading  in 
anything    on    which    they    could     make 
money,    it   was   held,    that   "  taking    this 
statement  as  literally  true,  and  it  cannot 
be   questioned,  that  Catlin  might,  during 
the  continuance  of  the   partnership,  have 
purchased    hogs,   or  other  stock,   on    ac- 
count of  the  firm."     See  also  Cadwallader 
V.  Kraesen,  22  Md.  200  ;  Edwards  v.  Tracy, 
62    Penn.    St.    374;    Michigan    Bank    v. 
Eldred,  9  Wall.  U.  S.  544. 

But  in  doubtful  cases,  it  is  for  a  jury  to 
decide,  whether  the  partner  was  conduct- 
ing the  usual  business  of  the  firm,  in  the 
usual  manner,  so  as  to  bind  the  firm :  The 
London  Savings  Fund  Society  v.  Hagers- 
town  Savings  Bank,  36  Penn.  St.  498.  A 
partnership  is  bound  by  the  fraud  of  one 
of  its  members,  in  all  matters  relating  to 


the  business  of  the  firm  :  Beach  v.  The  State 
Bank,    2    Cart.    (Ind.)    488  ;   Boardman  v. 
Gore   et   al.,    15   Mass.   331  ;  Reynolds  v. 
Waher's  Heir  and  Admr.,  1   Wash.  (Va.) 
164;    Venable   v.   Levick,    2    Head    351; 
Ncsbit  et  al.  v.  Patton  et  al.,  4  Rawle  120 ; 
Stockwell  V.  Dillingham,   50   Maine  442  ; 
for,  "  by  forming  the  connection,  the  part- 
ners publish  to  the  world  their  confidence 
in  each  other's   integrity  and  good  faith, 
and  impliedly  agree  to  be  responsible  for 
what  they  shall  respectively  do,  within  the 
scope    of    their    partnership    business:" 
Hawkins  et  al.  v.  Appelby  et  al.,  2  Sandf. 
S.   C.  428 ;  but  it  is    otherwise  if  it  was 
known  that   the    partnership  funds  were 
being  misappropriated,  or  that  the  fraudu- 
lent  partner    had    no    authority   to    act: 
Yeager    v.    Wallace,    57    Penn.    St.    3G5 ; 
Fielden  v.  Lakens,  9  Bosw.  436  ;  Mechanics' 
Bank  v.  Foster,  44  Barb.  87  ;  Graham  v. 
Meger,  4  Blatch.  C.  C.  129  ;  and  this  holds 
true  in  the  case  of  a  fraudulent  release  by 
one  partner :  Canal  Co.  v.  Gordon,  6  Wall. 
U.  S.  561.     But  if  money  is  borrowed,  or 
goods   bought,    or  any  other  contract  is 
made  by  one  partner,  upon  his  own  exclu- 
sive  credit,   he   alone  is   liable   therefor, 
although  the  money,  property,  or  other 
contract  is  for  the  proper  use  and  benefit 
of  the  partnership,  aud  is  applied  thereto  : 
No.  Pa.  Coal   Co.'s  Ap.,  45  Penn.  St.  185  ; 
Clay  V.  Cottrell,  18  Id.  408  ;  Broaddus  v. 
Evans,  63  N.  C.  633.  But  see  to  the  contrary. 
Tucker  v.  Peaslee,  36  N.  H.  167. 

But  one  i)artner  cannot  bind  the  firm  by 
deed,  or  instrument  under  seal :  Donaldson 
V.  Kendall  et  al.,  2  Geo.  Decs.  227  ;  Clement 
V.  Brush,  3  Johns.  Cas.  181 ;  Green  et  al. 
V.  W.  &  T.  Beals,  2  Caines  254 ;  Napier  v. 
Catron  et  al.,  2  Humph.  534;  Anderson  et 
al.  V.  Tompkins  et  al.,  1  Brockenb.  463  ; 
Andrew's  Heirs,  &c.,  v.  Brown's  Admr.  et 
al.,  21  Ala.  437  ;  Davidson  et  al.  v.  Kelly, 
1  Md.  501  ;  Snyder  v.  May  et  al.,  19  Penn. 
St.    235 ;    Pierce    v.    Cameron   et    al.,    7 


OF   JOINT   OWNERSHIP  AND   JOINT   LIABILITY. 


318 


given  to  one  partner,  is  constructively  notice  to  them  all.(^)  And  any  agree- 
ment between  the  partners,  by  which  any  one  of  them  may  be  restrained 
from  doing  any  act  to  pledge  the  credit  of  the  firm,  though  binding  as  be- 


[*319] 


tween  themselves,  will  not  be  binding  on  *any  creditor(w)  who 
may  not  have  notice  of  it.(a;)  If,  however,  the  transaction  be  not 

(t)  Per  Lord  Ellenborough,  1  M.  &  Selw.  259. 

(id)  Waugh  V.  Carver,  2  H.  Black.  235  ;  South  Carolina  Bank  v.  Case,  8  B.  &  C.  427 
(E.  C.  L.  R.  vol.  15) ;  Hawken  v.  Bourne,  8  M.  &  W.  703,  710. 

(z)  Minnitt  v.  Whinery,  5  Bro.  Pari.  Cas.  489 ;  Ex  parte  Darlington  District  Joint 
Stock  Banking  Company,  In  re  Riches,  L.  C.  11  Jur.  N.  S.  122.  See  also  Hogg  v.  Skeen, 
18  C.  B.  N.  S.  426  (E.  C.  L.  R.  vol.  114). 


Richard.  114;  Chamberlain  et  al.  v.  Mad- 
den, Id.  395;  Dillon  v.  Brown,  11  Gray 
179;  except  byway  of  release:  Crutwell 
V.  De  Rossett,  5  Jones  263  ;  Fluck  v.  Bond, 
3  Phila.  207  ;  Ormsbee  v.  Davis,  5  R.  L 
442  ;  and  hence,  one  partner  cannot  dis- 
pose of  the  partnership  real  estate  :  Arnold 
V.  Stevenson,  2  Nev.  234;  Piatt  v.  Oliver 
et  al.,  8  McL.  27  ;  Ely  v.  Hair,  16  B.  Mon. 
230 ;  though  his  deed  will  convey  to  the 
grantee  the  legal  title  to  an  undivided 
moiety,  subject  to  the  equities  of  the  part- 
nership :  Jones  v.  Nagle,  2  P.  &  H.  (Va.) 
339 ;  but  where  a  partner  has  a  right  to 
dispose  of  the  assets  of  the  firm  as  sur- 
viving partner,  though  his  deed  to  a  pur- 
chaser of  real  estate  will  not  convey  a 
legal  title,  yet  it  will  transfer  an  equitable 
title,  through  which  he  may  compel  the 
heir  to  convey  the  estate  :  Andrew's  Heirs, 
&c.,  V.  Brown's  Admr.  et  al.,  21  Ala.  437; 
Rothwell  V.  Dewees,  2  Black  U.  S.  616  ; 
Dubois  Ap.,  38  Penn.  St.  231 ;  and  it  has 
been  held,  that  in  cases  of  urgency,  all  the 
partners  need  not  join  in  an  assignment  of 
the  partnershij)  property :  Robinson  v. 
Gregory,  29  Barb.  560  ;  Kemp  v.  Caruley, 
3  Duer  1  ;  Stein  v.  La  Dow,  13  Minn.  412. 
So,  one  partner  cannot  by  a  confession  of 
judgment  bind  his  copartner:  Shedd  v. 
Bank  of  Brattleboro,  32  Vt.  709  ;  Edwards 
V.  Pitzer,  12  Iowa  607 ;  unless  actually 
brought  into  court  by  service  of  process 
on  himself  and  copartner  :  Crane  et  al.  v. 
French  et  al.,  1  Wend.  311 ;  Morgan  et  al. 
V.  Richardson,  16  Mo.  409  ;  and  a  service 
of  process  on  one  of  several  partners,  is 
not  equivalent  to  service  on  all :  Rice  v. 
Doniphan  et  al.,  4  B.  Mon.   123.     But  a 


judgment  for  a  partnership  debt  recovered 
against  one  of  the  partners,  the  others 
being  out  of  the  jurisdiction,  is  payable 
out  of  partnership  property,  in  preference 
to  the  individual  debts  of  the  partner  sued  : 
Inbusch  V.  Farwell,  1  Black  U.  S.  566  ; 
and  a  judgment  confessed  by  one  partner, 
is  good  as  between  him  and  the  creditor, 
though  void  as  to  the  copartners :  York 
Bank's  Ap.,  36  Penn.  St.  458  ;  Grier  v. 
Hood,  25  Id.  430  ;  and  by  the  Act  of  April 
6,  1830,  of  Pennsylvania,  will  not  dis- 
charge the  other  partners  from  liability 
for  the  same  debt :  Kaufifmann  v.  Fisher,  3 
Grant  Cas.  302. 

An  absolute  transfer  of  the  whole  pro- 
perty of  the  firm  to  break  up  the  firm,  is 
not  within  the  power  of  a  single  partner : 
Kimball  v.  Hamilton,  &c.,  Ins.  Co.,  8  Bosw. 
495  ;  Hook  v.  Stone,  34  Mo.  329 ;  Coope  v. 
Bowles,  42  Barb.  87  ;  and  amounts  to  a 
dissolution  of  the  partnership :  Welles  v. 
March,  30  N.  Y.  344. 

After  the  dissolution  of  a  firm,  the  ad- 
missions of  one  of  the  partners  cannot  be 
received  in  evidence  against  his  copart- 
ners :  Hamilton  i^.  Summers,  12  B.  Mon. 
14  ;  Daniel  v.  Nelson,  10  Id.  316  ;  Draper 
V.  Bissell  et  al.,  3  McL.  275  ;  Bispham  v. 
Patterson  et  al.,  2  Id.  87  ;  Robinson  et  al. 
V.  Taylor  et  al.,  4  Penn.  St.  242  ;  Berryhill 
V.  McKee,  1  Humph.  31 ;  Conery  v.  Hayes, 
19  La.  Ann.  325  ;  unless  the  one  making 
such  admissions,  has  an  express,  or  an  im- 
plied authority,  to  settle  the  business  of 
the  firm  :  Draper  v.  Bissell  et  al.,  3  McL. 
275;  Robinson  et  al.  v.  Taylor  et  al.,  4 
Penn.  St.  242.;  Repport  v.  Colvin,  48  Id. 
248. 


319  OF  PERSONAL  ESTATE  GENERALLY. 

in  the  ordinary  course  of  the  business  of  the  partnership,  the  other  partners 
will  not  be  liable  as  such  in  respect  of  it.  Thus  one  partner  cannot  bind 
the  firm  by  a  submission  to  arbitration, (2/)  or  by  confessing  a  judgment  ;{z) 
and  one  partner  has  ordinarily  no  authority  to  execute  a  deed  in  the  names 
of  the  others  so  as  to  bind  the  partnership. (a)  So  a  farmer  carrying  on 
his  business  in  partnership  ^vith  another  would  not  be  liable  on  a  bill  of 
exchange  drawn  by  his  partner  in  the  name  of  the  partnership  ;{b) 
neither  would  a  solicitor  be  liable  on  a  bill  drawn  by  his  partner  in  the 
name  of  his  firm,  though  given  to  secure  a  partnership  debt  ;(c)  for  bill 
transactions  form  no  part  of  the  ordinary  business  of  either  farmers  or 
solicitors.  Again,  there  is  no  right  or  power  implied  by  law  in  any  of 
the  directors  of  a  joint-stock  company  to  bind  the  company  by  drawing 
or  accepting  bills  or  notes  ;{d)  and  in  like  manner  notice  of  any  matter 
relating  to  the  business  of  a  joint-stock  company  given  to  any  member, 
even  a  director,  is  not  constructive  notice  to  the  company  itself.(t;)  For 
joint-stock  companies  are  essentially  different  from  ordinary  partner- 
ships. It  is  not  necessary  that  the  directors  should  have  any  other  power  to 
r*^9ni  ^^"^  ^^^  company  by  *bills  or  notes  than  such  as  may  be  con- 
"  ferred  on  them  by  the  charter  or  articles  of  association. (/) 
And  the  business  of  such  companies  is  always  carried  on  at  an  office  for 
the  purpose,  and  is  not,  like  that  of  ordinary  partnerships,  confided  to 
any  one  individual  member.  The  Companies  Act,  1862,  now  provides, 
that  a  promissory  note  or  bill  of  exchange  shall  be  deemed  to  have  been 
made,  accepted  or  endorsed  on  behalf  of  any  company  under  that  act,  if 
made,  accepted  or  endorsed  in  the  name  of  the  company,  by  any  person 
acting  under  the  authority  of  the  company,  or  if  made,  accepted 
or  endorsed  by  or  on  behalf,  or  on  account  of  the  company  by 
any  person  acting  under  the  authority  of  the  company.(^) 

The  liability  of  a  shareholder  in  a  joint-stock  company  to  the  debts  of 
the  company  has  been  already  noticed.     It  varies,  as  we  have  seen,(/<) 

(y)  Stead  V.  Salt,  3  Bing.  101  (E.  C.  L.  R.  vol.  11)  ;  s.  c,  10  J.  B.  Moore  389. 

(z)  Hambidge  v.  De  la  Croiiee,  3  B.  C.  742  (E.  C.  L.  R.  vol.  54.) 

(a)  Harrison  v.  Jackson,  7  Term  Rep.  207  ;  see  Burn  v.  Burn,  3  Ves.  573,  578. 

{b)  Per  Littlcdale,  J.,  10  B.  &  C.  138  (E.  C.  L.  R.  vol.  21). 

(c)  Hedley  v.  Bainbridge,  3  Q.  B.  3-1(3  (E.  C.  L.  R.  vol.  43). 

{d)  Dickinson  v.  Valpy,  10  B.  &  C.  128  (E.  C.  L.  R.  vol.  21)  ;  Bramah  v.  Roberts,  3 
N.  C.  963. 

(e)  Powles  V.  Page,  3  C.  B.  16  (E.  C.  L.  R.  vol.  54)  ;  Martin  v.  Sedgwick,  9 
Beav.  333. 

(/)  Balfour  v.  Ernest,  5  C.  B.   N.  S.  601  (E.  C.  L.  R.  vol.  94). 

Iff)  Stat.  25  &  26  Vict.  c.  89,  s.  47  ;  and  see  as  to  other  contracts,  stat.  30  &  31  Vict. 
c.  131,  s.  37,  ante,  p.  227.     " 

(A)  Ante,  p.  228. 


OF  JOINT    OWNERSHIP   AND   JOINT   LIABILITY.  320 

according  as  the  company  is  incorporated  with  unlimited  liabih'ty  or 
with  liability  limited  by  shares  or  by  guarantee.  The  mere  circum- 
stance, however,  of  a  person  allowing  his  name  to  be  published  as  a  pro- 
visional committee-man  of  a  projected  joint-stock  company  docs  not  con- 
fer on  the  solicitor  or  secretary  of  the  intended  company,  or  any  one 
else,  implied  authority  to  pledge  the  credit  of  such  person  for  goods  sup- 
plied to  the  company,  or  work  done  on  its  account.(2)  For  to  agree  to 
become  a  member  of  a  committee  is  merely  to  agree  to  become  one  of  a 
body,  to  whom  others  have  committed  a  particular  duty,  and  does  not 
constitute  an  agreement  to  share  with  the  other  members  of  that  body  in 
profit  or  loss,  which  is  the  characteristic  of  a  partnership. (^) 

(?■)  Reynell  v.  Lewis,  15  M.  &  W.  517  ;  Barker  v.  Stead,  3  C.  B.  946  (E.  C.  L.  R.  voL 
54)  ;  Bailey  v.  Macauley,  13  Q.  B.  815  (E.  C.  L.  R.  vol.  66). 
(k)   15  M.  &  W.  529. 


26 


[*321]  *CHAPTER   III. 

OF   A   WILL. 

All  kinds  of  personal  property  may  be  bequeathed  by  will.  This 
right,  in  its  present  extent,  has  been  of  very  gradual  and  almost  imper- 
ceptible growth ;  for  anciently,  by  the  general  common  law,  a  man  who 
left  a  wife  and  children  could  not  deprive  them  by  his  will  of  more  than 
one  equal  third  part  of  his  personal  property.  If,  however,  he  left  a 
wife  and  no  children,  or  children  and  no  wife,  he  was  then  enabled  to 
dispose  of  half,  leaving  the  other  half  for  the  wife  or  for  the  children. (a) 
This  ancient  rule,  however,  gradually  became  subject  to  many  exceptions, 
by  the  customs  of  particular  places,  until  the  rule  itself  took  the  place  of 
an  exception  and  became  confined  to  such  places  as  had  a  custom  in  its 
favor.  These  places,  in  later  times,  were  the  province  of  York,  the  prin- 
cipality of  Wales,  and  the  city  of  London ;  as  to  all  which  places,  a 
general  power  of  testamentary  disposition  was  conferred  by  acts  of  parlia- 
ment of  William  and  Mary,  Anne  and  George  l.{b)  And  noAv,  by  the 
act  for  the  amendment  of  the  laws  with  respect  to  wills, (^)  every  person 
of  full  age  is  expressly  empowered  to  bequeath  by  his  will,  to  be  executed 
as  required  by  the  act,  all  personal  estate  to  which  he  shall  be  entitled, 
either  at  law  or  in  equity,  at  the  time  of  his  decease.^ 

f-*q.->.9-|        *The  ecclesiastical  courts,  as  we  shall  hereafter  see,  very  early 

acquired  the  right  of  determining  as  to  the  validity  of  wills  of 

personal  estate ;  and,  in  the  exercise  of  this  right,  they  generally  followed 

(a)  2  Black.  Com.  492;  Williams  on  Executors,  pt.  1,  bk.  1,  ch.  1.  See  also  1  C.  P. 
Cooper's  Reports,  p.  539. 

{b)  Stat.  4  &  5  Will.  &  Mary,  c.  2,  explained  by  stat.  2  &  3  Anne,  c.  5,  for  the  pro- 
vince of  York;  stat.  7  &  8  Will.  III.  c.  38,  for  Wales;  and  stat.  11  Geo.  1,  c.  18,  for 
London.     See  2  Bl.  Com.  493. 

(c)  Stat.  1  Will.  IV.  &  1  Vict.  c.  26,  s.  3. 

1  By  the  eleventh  section  of  an  act  of  Dig.  (1861),  p.  1017,  sec.  13;  and  by  a 
the  Legislature  of  Pennsylvania,  of  the  11th  recent  statute,  the  power  of  a  married  wo- 
of April,  1848,  the  widow  of  a  decedent,  man  to  make  a  will,  has  been  restricted  as 
who  has  made  a  will,  shall  not  be  deprived  to  her  depriving  her  husband  of  his  rights, 
of  her  share  of  his  personalty  under  the  in  like  manner:  Id.  1018,  sec.  21.  See, 
intestate  laws  of  that  State,  in  case  she  also,  2  Revis.  Statutes  of  Ohio  (1861),  p. 
elects  not  to  take  under  the  will :  Purd.  1G23,  sees.  43,  44,  45  and  46. 


I 


OF   A   WILL. 


322 


the  rules  of  the  civil  law.  By  this  law  males  at  the  age  of  fourteen,  and 
females  at  the  age  of  twelve,  were  allowed,  if  of  sufficient  discretion,  to 
make  a  testament  ;{d)  and  the  same  rule,  accordingly,  prevailed  in  this 
country  with  respect  to  wills  of  personal  property, (e)  although,  by  some 
authorities,  seventeen  and  even  eighteen  was  said  to  be  the  proper  age.(/) 
The  act  for  the  amendment  of  the  laws  with  respect  to  wills,  has,  however, 
now  made  the  law  uniform  with  respect  to  all  wills,  whether  of  real  or  of 
personal  estate,  and  has  enacted  that  no  will  made  by  any  person  under 
the  age  of  twenty-one  years  shall  be  valid. ((7)^ 

(d)  Inst.  lib.  2,  tit.  12,  s.  1  ;  Dig.  lib.  28,  tit.  1,  s.  5. 

(e)  2  Bl.  Com.  497.  (/)  Co.  Litt.  89  b,  n.  (6). 
iff)  Stat.  1  Will.  IV.  &  1  Vict.  c.  26,  s.  7. 


1  The  questions,  who  may  make  a  will  ? 
and,  how  is  it  to  be  made?  are  best  an- 
swered by  a  reference  to  the  statutory  pro- 
visions of  each  particular  state. 

In  Pennsylvania,  "  Every  person  of  sound 
mind  (married  women  excepted),  may  dis- 
pose by  will  of  his  or  her  real  estate, 
whether  such  estate  be  held  in  fee  simple, 
or  for  the  life  or  lives  of  any  other  person 
or  persons,  and  whether  in  severalty,  joint 
tenancy  or  common,  and  also  of  his  or  her 
personal  estate.  Any  married  woman  may 
dispose,  by  her  last  will  and  testament,  of 
her  separate  property,  real,  personal,  or 
mixed,  whether  the  same  shall  accrue  to 
her  before  or  during  coverture  :  provided, 
that  the  said  last  will  and  testament  be 
executed  in  the  presence  of  two  or  more 
witnesses,  neither  of  whom  shall  be  her 
husband.  And  provided,  also,  that  no  will 
shall  be  effectual  unless  the  testator  were, 
at  the  time  of  making  the  same,  of  the  age 
of  twenty-one  years  or  upwards,  at  which 
age  the  testator  may  dispose  of  real  as  well 
as  personal  or  mixed  property,  if  in  other 
respects  competent  to  make  a  will.  Every 
will  shall  be  in  writing,  and,  unless  the 
person  making  the  same  shall  be  prevented 
bj-  the  extremity  of  his  last  sickness,  shall 
be  signed  by  him  at  the  end  thereof,  or  by 
some  person  in  his  presence,  and  by  his 
express  direction,  and  in  all  cases  shall  be 
proved  by  the  oaths  or  affirmations  of  two 
or  more  competent  witnesses,  otherwise 
such  will  shall  be  of  no  effect.  Provided, 
that  personal  estate  may  be  bequeathed 


by  a  nuncupative  will,  under  the  following 
restrictions:  1.  Such  will  shall  in  all 
cases  be  made  during  the  last  sickness  of 
the  testator,  and  in  the  house  of  his  habi- 
tation or  dwelling,  or  where  he  has  re- 
sided, for  the  space  of  ten  days  or  more 
next  before  the  making  of  such  will ;  ex- 
cept where  such  person  shall  be  surprised 
by  sickness,  being  from  his  own  house, 
and  shall  die  before  returning  thereto. 
2.  Where  the  sum  or  value  bequeathed 
shall  exceed  one  hundred  dollars,  it  shall 
be  proved  that  the  testator,  at  the  time  of 
pronouncing  the  bequest,  did  bid  the  per- 
sons present,  or  some  of  them,  to  bear 
witness  that  such  was  his  will,  or  to  that 
effect ;  and  in  all  cases  the  foregoing  re- 
quisites shall  be  proved  by  two  or  more 
witnesses,  who  were  present  at  the  making 
of  such  will.  Provided,  that  notwith- 
standing this  act,  any  mariner  being  at 
sea,  or  any  soldier  being  in  actual  military 
service,  may  dispose  of  his  movables, 
wages,  and  personal  estate,  as  he  might 
have  done  before  the  making  of  this  act. 
No  will  in  writing  concerning  any  real 
estate  shall  be  repealed,  nor  shall  any  de- 
vise or  direction  therein  be  altered,  other- 
wise than  by  some  other  will  or  codicil  in 
writing,  or  other  writing  declaring  the 
same,  executed  and  proved  in  the  same 
manner  as  is  hereinbefore  provided,  or  by 
burning,  cancelling,  or  obliterating  or  de- 
stroying the  same  by  the  testator  himself, 
or  by  some  one  in  his  presence,  and  by  his 
express  direction.     W^hen  any  person  shall 


322 


OF   PERSONAL    ESTATE    GENERALLY. 


Personal  property  was  anciently  of  so  little  account  that  a  Avill  of  it 
might  be  made  by  word  of  mouth,  if  proved  by  a  sufficient  number  of 


make  his  last  will  and  testament,  and 
afterwards  shall  marry,  or  have  a  child  or 
children  not  provided  for  in  such  will,  and 
die  leaving  a  widow  and  child,  or  either  ii 
widow,  or  child,  or  children,  although 
such  child  or  children  be  born  after  the 
deatli  of  their  father,  every  such  person, 
so  far  as  shall  regard  the  widow,  or  child 
or  children  after  born,  shall  be  deemed 
and  construed  to  die  intestate,  and  such 
widow,  child  or  children,  shall  be  entitled 
to  such  purparts,  shares,  and  dividends  of 
the  estate,  real  and  personal,  of  the  de- 
ceased, as  if  he  had  actually  died  without 
any  will.  A  will  executed  by  a  single 
woman  shall  be  deemed  revoked  by  her 
subsequent  marriage,  and  shall  not  be  re- 
vived by  the  death  of  her  husband  :"  Purd. 
Dig.  (1861),  pp.  1016,  1017,  1018. 

In  New  York,  "  All  persons,  except 
idiots,  persons  of  unsound  mind,  married 
women  and  infants,  may  devise  their  real 
estate,  by  a  last  will  and  testament,  duly 
executed,  according  to  the  provisions  of 
this  title.  Every  male  person  of  the  age 
of  eighteen,  years  or  upwards,  and  every 
female  not  being  a  married  woman,  of  the 
age  of  sixteen  years  or  upwards,  of  sound 
mind  and  memory,  and  no  others,  may 
give  and  bequeath  his  or  her  personal 
estate,  by  will  in  writing.  No  nuncupa- 
tive or  unwritten  will,  bequeathing  per- 
sonal estate,  shall  be  valid,  unless  made 
by  a  soldier,  while  in  actual  military  ser- 
vice, or  by  a  mariner,  while  at  sea.  Every 
last  will  and  testament  of  real  or  personal 
property,  or  both,  shall  be  executed  and 
attested  in  the  following  manner:  1.  It 
shall  be  subscribed  by  the  testator  at  the 
end  of  the  will.  2.  Such  subscription 
shall  be  made  by  the  testator,  in  the  pres- 
ence of  each  of  the  attesting  witnesses,  or 
shall  be  acknowledged  by  him  to  have 
been  so  made,  to  each  of  the  attesting  wit- 
nesses. 3.  The  testator,  at  the  time  of 
making  such  subscription,  or  at  the  time 
of  acknowledging  the  same,  shall  declare 
Ihe  instrument  so  subscribed,  to  be  his 


last  will  and  testament.  4.  There  shall 
be  at  least  two  attesting  witnesses,  each 
of  whom  shall  sign  his  name  as  a  witness 
at  the  end  of  the  will,  at  the  request  of 
the  testator.  The  witnesses  to  any  will, 
shall  write  opposite  to  their  names  their 
respective  places  of  residcHce  ;  and  everj-- 
person  who  shall  sign  the  testator's  name 
to  any  will  by  his  direction,  shall  write 
his  own  name  as  a  witness  to  the  will. 
No  will  in  writing,  except  in  the  cases 
hereinafter  mentioned,  nor  any  part  thereof, 
shall  be  revoked  or  altered,  otherwise  than 
by  some  other  will  in  writing,  or  some 
other  writing  of  the  testator  declaring 
such  revocation  or  alteration,  and  execu- 
ted with  the  same  formalities  with  which 
the  will  itself  was  required  by  law  to  he 
executed  ;  or  unless  such  will  be  burnt, 
torn,  cancelled,  obliterated,  or  destroyed, 
with  the  intent,  and  for  the  purpose  of  re- 
voking the  same,  by  the  testator  himself, 
or  by  another  person  in  his  presence,  by 
his  direction  and  consent ;  and  when  so 
done  by  another  person,  the  direction  and 
consent  of  the  testator,  and  the  fact  of 
such  injury,  or  destruction,  shall  be  proved 
by  at  least  two  witnesses.  If,  after  the 
making  of  any  will,  disposing  of  the  whole 
estate  of  the  testator,  such  testator  shall 
marry,  and  have  issue  of  such  marriage, 
born,  either  in  his  lifetime,  or  after  his 
death,  and  the  wife,  or  the  issue  of  such 
marriage,  shall  be  living  at  the  death  of  the 
testator,  such  will  shall  be  deemed  revoked, 
unless  provision  shall  have  been  made  for 
such  issue,  by  some  settlement,  or  unless 
such  issue  shall  be  provided  for  in  the 
will,  or  in  such  way  mentioned  therein,  as 
to  show  intention  not  to  make  such  provi- 
sion ;  and  no  other  evidence  to  rebut  the 
presumption  of  such  revocation  shall  be 
received.  A  will  executed  by  an  unmar- 
ried woman  shall  be  deemed  revoked  by 
her  subsequent  marriage.  Whenever  a 
testator  shall  have  a  child,  born  after  the 
making  of  his  will,  either  in  his  lifetime, 
or  after  his  death,  and  shall  die,  leaving 


OF   A   WILL. 


322 


■witnesses,  as  well  as  by  writing ;  and  a  will  made  by  word  of  mouth  was 
termed  a  nuncupative  testament.(7<)  By  the  Statute  of  Frauds,  however, 
a  nuncupative  testament,  where  the  estate  bequeathed  exceeded  the 
value  of  thirty  pounds,  was  surrounded  by  so  many  requirements  as  to 
cause  its  complete  disuse.(2)  But  no  provision  was  made  for  guarding 
the  execution  of  a  written  will  of  personal  estate ;  although  by  the  same 
statute(A:)  a  will  of  real  estate  was  required  to  be  attested  by  three  or 

(h)  "U'cntworth's  Executors,  11  ctseq.;  Williams  on  Executors,  pt.  1,  bk.  2,  ch.  2, 
s.  6. 

{i)  Stat.  29  Car.  II.  c.  3,  ss.  19-21,  explained  by  stat.  4  Anne,  c.  16,  s.  14. 
\k)   Sect.  5. 


such  child,  so  after  born,  unprovided  for 
by  any  settlement,  and  neither  provided 
for,  nor  in  any  way  mentioned  in  his  will, 
every  such  child  shall  succeed  to  the 
same  portion  of  the  father's  real  and  per- 
sonal estate,  as  would  have  been  descended 
or  distributed  to  such  child,  if  the  father 
had  died  intestate  ;"  N.  Y.  Revis.  Stats. 
5th  ed.,  vol.  iii.,  pp.  138,  141,  144,  145. 
As  to  power  of  a  married  woman  over  her 
separate  estate,  see  Id.  240. 

Nearly  all  the  statutes  on  this  subject, 
require  that  a  person  should  be  of  the  age 
of  twenty-one  years,  to  make  a  will,  either 
of  real  or  personal  estate  ;  but  in  New 
York,  as  has  been  seen,  a  male  of  the  age 
of  eighteen,  and  a  female  who  has  reached 
sixteen,  may  make  a  will  of  their  person- 
alty ;  in  Virginia,  North  Carolina,  Ken- 
tucky, Alabama,  California  and  Arkansas, 
any  person  who  has  attained  the  age  of 
eighteen  years,  may  bequeath  their  per- 
sonal property  by  will ;  and  in  Maryland 
and  Mississippi,  a  female  of  eighteen  may 
make  a  will  other  real  estate. 

The  number  of  witnesses  required,  is 
different  in  the  different  States.  In  most 
of  them,  three  is  required  ;  but  in  Penn- 
sj-lvania,  New  York,  California,  Arkansas, 
Ohio,  Delaware,  Tennessee,  Kentucky, 
North  Carolina,  Alabama,  Texas,  Michigan, 
Iowa  and  Virginia,  two  only  are  neces- 
sary. The  statute  of  Mississippi  requires 
three  witnesses  to  a  will  of  real  estate, 
but  one  is  sufficient  to  a  will  of  personalty  ; 
and  three  witnesses  are  also  necessary  in 
Virginia  to  a  will  of  real  estate.  In  some 
of  the   States    it    is    requisite   that  these 


should  be  subscribing  witnesses,  as  in 
New  Hampshire,  Iowa,  Georgia  and  New' 
Jersey,  but  it  does  not  follow  that  they 
must  all  join  in  proving  the  will  :  Meckle 
V.  Matlack,  2  Harrison  86. 

There  is  a  diversity,  too,  as  respects  the 
making  of  nuncupative  wills.  In  almost 
all  the  States  they  are  allowed,  but  the 
statutes  enjoin,  that  if  the  personal  pro- 
perty thereby  bequeathed  should  be  be- 
yond a  certain  value  they  must  be  strictly 
proved  in  the  manner  pointed  out  in  the 
respective  acts.  In  Texas,  this  sum  is 
fixed  at  §30;  and  in  South  Carolina  at  $10; 
in  New  Jersey,  at  $80  ;  in  Pennsylvania, 
New  Hampshire,  Alabama,  Maine,  and 
Mississippi,  at  $100  ;  in  Georgia,  at  30Z.  ; 
in  Vermont,  North  Carolina  and  Dela- 
ware, at  $200;  in  Tennessee,  at  $250; 
and  in  Michigan,  Iowa  and  Maryland,  at 
$300.  But  in  New  York,  Florida,  Massa- 
chusetts and  Ohio,  no  nuncupative  will 
can  be  deemed  valid,  unless  proved  as  re- 
quired by  the  statutes  of  those  States ; 
and  in  California,  Alabama  and  Arkansas, 
no  such  will  can  be  valid  unless  under 
the  value  of  $500,  nor  unless  proved  as 
the  legislative  acts  of  those  respective 
States  demand.  It  is,  however,  expressly 
enacted  by  the  statutes  of  the  different 
States,  that  nothing  therein  contained 
shall  be  construed  to  deprive  a  mariner  at 
sea,  or  a  soldier  in  actual  military  service, 
from  making  such  will  as  he  might  have 
done  before  those  acts  became  laws. 

Whether  a  seal  is  necessary  to  the 
validity  of  a  testament  is  determined  by 
the  statutes  of  the  several  States. 


322  OF   PERSONAL   ESTATE   GENERALLY. 

four  witnesses.  No  attestation,  therefore,  was  required  to  a  will  of  per- 
r*o9q-|  sonal  estate,  nor  was  it  even  necessary  that  *such  a  will  should 
"be  sio-ned  by  the  testator.  Thus,  instructions  for  a  Avill  com- 
mitted to  writing,  given  by  a  person  who  died  before  the  instrument  could 
be  formally  executed,  though  such  instructions  were  neither  reduced  into 
writing  in  the  presence  of  the  testator,  nor  ever  read  over  to  him,  have 
been  held  to  operate  as  fully  as  a  will  itself.(/)  It  was,  however,  pro- 
vided by  the  Statute  of  Frauds,  that  no  will  in  writing  of  personal  estate 
should  be  repealed  or  altered  by  word  of  mouth  only,  except  the  same 
were,  in  the  life  of  the  testator,  committed  to  writing,  and  after  the  writ- 
ing thereof,  read  unto  the  testator,  and  allowed  by  him,  and  proved  to 
be  so  done  by  three  witnesses  at  the  least. (m)^ 

By  the  recent  act  for  the  amendment  of  the  laws  with  respect  to  wills, 
every  will  of  personal  estate  must  now  be  in  writing,  and  signed  at  the 
foot  or  end  thereof  by  the  testator  or  by  some  other  person  in  his  pres- 
ence and  by  his  direction  ;  and  such  signature  shall  be  made  or  acknow- 
ledged by  the  testator,  in  the  presence  of  two  or  more  witnesses  present 
at  the  same  time  ;  and  such  witnesses  shall  attest  and  shall  subscribe  the  will 
in  the  presence  of  the  testator.(?i)  The  act,  in  fact,  requires  the  same 
mode  of  execution  and  attestation  to  every  will,  whether  the  property  be 
real  or  personal.  But  an  exception  is  made  in  favor  of  soldiers  being  in 
actual  military  service,  that  is,  on  an  expedition, (o)  and  of  mariners  and 
seamen,  being  at  sea,  Avho  may  dispose  of  their  personal  estate  as  they 
might  have  done  before  the  making  of  the  &ct;{p)  a  similar  exception 
r*^94"l  ^^^  contained  *in  the  Statute  of  Frauds.(5)  The  wills  of  sol- 
diers  on  an  expedition  may  accordingly  be  made  by  an  unattested 
writing,  or  by  a  mere  nuncupative  testament  or  declaration  of  their  will 
by  word  of  mouth,  made  before  a  sufficient  number  of  witnesses.  But 
the  wills  of  petty  officers  and  seamen  in  the  royal  navy,  and  of  mai'ines 
and  non-commissioned  officers  of  marines,  so  far  as  relates  to  any  wages, 
pay,  prize  money  or  other  moneys  payable  by  the  admiralty,  are  required 


(l)  Carey  v.  Askew,  3  Bro.  C.  C.  58  ;  s.  c.  1  Cox  241. 

(m)  Stat.  29  Car.  II.  c.  3,  s.  22. 

(«)  Stat.  1  Will.  IV.  &  1  Vict.  c.  26,  s.  9,  explained  by  stat.  15  k  16  Vict.  c.  24.  See 
Principles  of  the  Law  of  Real  Property  1G8,  169,  4th  ed. ;  175,  176,  5th  ed. ;  183,  184, 
6th  ed. ;   187,  7th  ed. ;   106,  197,  8th  ed. 

(o)  Druramond  v.  Parish,  3  Curt.  522.         (p)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  11. 

{q)  Stat.  29  Car.  II.  c.  3,  s.  23. 

1  See  ante,  p.  322,  note  1. 


OF   A   WILL.  324 

by  act  of  parliament(r)  to  be  executed  in  the  presence  of  and  to  be 
attested  by  a  commissioned  officer,  or  certain  other  officers  or  persons 
mentioned  in  the  act ;  and  the  wills  of  such  persons  are  also  guarded  by 
other  requisitions  in  order  to  prevent  their  being  imposed  upon.^  And 
by  the  Merchant  Shipping  Act,  1854,  it  is  now  provided  that  the  Board 
of  Trade  may,  in  its  discretion,  refuse  to  pay  or  deliver  the  wages  or 
effects  of  any  deceased  merchant  seaman  to  any  person  claiming  to  be 
entitled  thereto  under  any  will  made  on  board  ship,  unless  such  will  is 
in  writing,  and  is  signed  or  acknowledged  by  the  testator  in  the  presence 
of  the  master  or  first  or  only  mate  of  the  ship,  and  is  attested  by  such 
master  or  mate.  And  the  Board  may,  in  its  discretion,  refuse  to  pay  or 
deliver  any  such  wages  or  effects  to  any  person,  not  being  related  to  the 
testator  by  blood  or  marriage,  who  claims  to  be  entitled  thereto  under  a 
will  made  elsewhere  than  on  board  ship,  unless  such  will  is  in  writing 
and  is  signed  or  acknowledged  by  the  testator  in  the  presence  of  two  wit- 
nesses, one  of  whom  is  some  shipping  master  appointed  under  the  act,  or 
some  minister  or  officiating  minister  or  curate  of  the  place  in  which  the 
same  is  made,  or,  in  a  place  where  there  are  no  such  persons,  some  jus- 
tice of  the  peace,  or  some  British  consular  officer,  or  some  officer  of  cus- 
toms, and  *is  attested  by  such  Avitn esses. (s)  By  the  act  to  rstcooc-i 
amend  the  laws  with  respect  to  wills  it  is  provided,  that  no  will 
or  codicil,  or  any  part  thereof,  shall  be  revoked,  otherwise  than  by  the 
marriao-e  of  the  testator  or  testatrix  (which  will  of  itself  effect  a  revoca- 
tion),(i)  or  by  another  will  or  codicil  executed  in  the  manner  thereby  re- 
quired, or  by  some  writing  declaring  an  intention  to  revoke  the  same, 
and  executed  in  the  manner  in  which  a  will  is  thereby  required  to  be 
executed,  or  by  the  burning,  tearing  or  otherwise  destroying  the  same 
by  the  testator,  or  by  some  person  in  his  presence,  and  by  his  direction, 
with  the  intention  of  revoking  the  same.(M)^ 

A  will  of  personal  estate  was  formerly  required  to  be  made  according 
to  the  law  of  the  domicile  of  the  testator  at  the  time  of  his  decease.(.i;) 
A  person's  domicile  is  the  place  which  he  makes  his  home.     But  with 

(r)  Stat.  28  &  29  Vict.  c.  72,  superseding  stats.  11  Geo.  IV.  &  1  Will.  IV.  c.  20,  ss. 
48-51  ;  1  Will.  IV.  &  1  Vict.  c.  26,  s.  12. 

(«)  Stat.  17  &  18  Vict.  c.  104,  s.  200. 

{t)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  18.  See  Principles  of  the  Law  of  Real  Pro- 
perty 153,  1st  ed. ;  163,  2ded.  ;  170,  3ded. ;  171,  4th  ed.  ;  179,  5th  ed,  ;  187,  6tli  ed.  ; 
191,  7th  ed.  ;  200,  8th  ed. 

(m)   Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  20. 

{x)  Stanley  v.  Bernes,  3  Hagg.  373. 

1  See  anie,  p.  322,  note  1.  «  See  ante,  p.  322,  note  1. 


325  OF    PERSONAL    ESTATE    GENERALLY. 

regard  to  many  persons  the  circumstances  connected  with  their  change 
of  residence  are  such  as  to  render  it  an  exceedingly  difficult  question  of 
fact, — what  country  is  their  domicile  at  any  given  time.  In  order  to 
remedy  the  inconveniences  thus  occasioned,  it  is  provided  by  a  recent 
act,(i/)  that  Avith  regard  to  persons  who  may  die  after  the  6th  of  August, 
1861,  the  date  of  the  act,  every  testamentary  instrument  made  out  of  the 
United  Kingdom  by  a  British  subject,  Avhatever  may  be  his  domicile  at 
the  time  of  making  it,  or  at  his  death,  shall,  as  regards  personal  estate, 
be  held  to  be  well  executed  for  the  purpose  of  being  admitted  to  probate, 
if  the  same  be  made  according  to  the  forms  required  either  by  the  law  of 
r*^op"i  *^^  place  where  the  same  was  made,  or  by  the  *law  of  the  place 
"  where  such  person  was  domiciled  when  the  same  was  made,  or 
by  the  laws  then  in  force  in  that  part  of  her  Majesty's  dominions  where 
he  had  his  domicile  of  origin. (^y  It  is  further  provided,(a)  that  every 
testamentary  instrument  made  within  the  United  Kingdom  by  any 
British  subject,  whatever  may  be  his  domicile  at  the  time  of  making  the 
same,  or  at  his  death,  shall,  as  regards  personal  estate,  be  held  to  be  Avell 
executed,  and  shall  be  admitted  to  probate,  if  the  same  be  executed 
according  to  the  forms  required  by  the  laws  of  that  part  of  the  United 
Kingdom  where  the  same  is  made.  And  no  testamentary  instrument  is 
to  be  revoked  or  to  become  invalid,  nor  is  the  construction  thereof  to  be 
altered  by  reason  of  any  subsequent  change  of  domicile  of  the  person 
making  the  same.(5)  Another  act  of  parliament,  passed  on  the  same 
day,(e)  provides  that  whenever  her  Majesty  shall,  by  convention  with 
any  foreign  state,  agree  that  provisions  to  the  eifect  of  the  enactments 
therein  contained  shall  be  applicable  to  the  subjects  of  her  Majesty  and 
of  such  foreign  state  respectively,  her  Majesty  may  by  order  in  council 
direct  that,  after  the  pubhcation  of  such  order  in  the  "London  Gazette," 
no  British  subject  resident  at  the  time  of  his  death  in  the  foreign  country 
named  in  such  order  shall  be  deemed,  under  any  circumstances,  to  have 
acquired  a  domicile  in  such  country,  unless  he  shall  have  been  resident 
in  such  country  for  one  year  immediately  preceding  his  decease,  and 
shall  also  have  made  and  deposited  in  a  public  office  of  such  foreign  country 
(such  office  to  be  named  in  the  order  in  council)  a  declaration  in  writing 
of  his  intention  to  become  domiciled  in  such  foreign  country.  And  any 
British  subject  dying  resident  in  such  foreign  country,  but  without  hav- 

iy)  Stat.  24  &  25  Vict.  c.  114.  (z)  Stat.  24  &  25  Vict.  c.  114,  s.  1. 

{a)  Sect.  2.  (6)  Sect.  3. 

(c)  Stat.  24  &  25  Vict.  c.  121. 

1  For  a  provision   somewhat  similar  to     Statutes    of     Kentucky     (18G0),    p.    459, 
that  referred  to  in  the  text,  see  2  Revised     sec.  8. 


OP  A  WILL.  326 

ing  so  resided,  and  made  such  declaration  *as  aforesaid,  shall  be    ^ ,  „^„^ 

•  •  r  3271 

deemed,  for  all  purposes  of  testate  or  intestate  succession  as  to    ^     -'J 

movables,  to  retain  the  domicile  he  possessed  at  the  time  of  his  going  to 
reside  there. ((7)  Similar  provisions  may  be  made,  after  any  such  conven- 
tion, with  regard  to  the  subjects  of  such  foreign  country  dying  in  Great 
Britain. (e)  But  this  act  is  not  to  apply  to  any  foreigners  who  may  have  ob- 
tained letters  of  naturalization  in  any  part  of  her  Majesty's  dominions.(/) 

Connected  with  the  subject  of  wills  is  that  of  donations  mortis  causa, 
which  may  here  be  noticed.  A  donation  mortis  causa  is  a  gift  made  in 
contemplation  of  death,  to  be  absolute  only  in  case  of  the  death  of  the 
giver. (^)  Being  a  gift,  it  can  be  made  only  of  chattels,  the  property  in 
which  passes  by  delivery  ^{h)  although  a  bond  debt  has,  contrary  to  this 
principle,(z)  been  allowed  to  pass  by  way  of  donation  mortis  causa  by 
delivery  of  the  bond.(/{;)  And  a  policy  of  life  assurance  has  also  recently 
been  held  a  proper  subject  for  such  a  gift,(Z)  also  bills  or  notes  though 
payable  to  order  and  unendorsed. (?n)  An  actual  or  constructive  deli- 
very of  the  subject  of  gift  to  the  donee  is  essential  to  a  donation  mortis 
causa  ;(w)  it  must  also  be  made  in  expectation  *of  the  donor's  r*q9Q-i 
decease,(o)  and  must  be  on  condition  that  the  gift  be  absolute 
only  on  that  event.(jt))  It  is  no  objection,  however,  that  the  donation  is 
clogged  with  a  trust  to  be  performed  by  the  donee.(5')  A  donation 
mortis  causa  is  revocable  by  the  donor  during  his  life,(r)  and  after  his 
decease  it  is  subject  to  his  debts,(s)  and  also  to  legacy  duty.(i;)^ 

{d)  Stat.  24  &  25  Vict.  c.  121,  s.  1.  (c)  Sect.  2.  _(/)  Sect.  3. 

Iff)  Inst.  tit.  Y,  De  Donationibus,  cited  by  Lord  Loughborough,  iu  Tate  v.  Hilbert,  2 
Ves.  jun.  119  ;  Walter  v.  Hodge,  2  Swanst.  99. 

(A)  See  a7ite,  p.  34  ;  Miller  v.  Miller,  3  P.  Wras.  356. 

(?)  Duffield  V.  Elwes,  1  Sim.  &  Stu.  244. 

(k)  Snellgrove  v.  Baily,  3  Atk.  214  ;  and  see  Boutts  v.  Ellis,  4  De  G.,  M.  &  G'.  249  : 
Moore  v.  Darton,  4  De  G.  &  Sm.  517. 

(l)   Witt  V.  Amis,  1  B.  &  Sm.  109  (E.  C.  L.  R.  vol.  101). 

{m)  Veal  v.  Veal,  27  Beav.  303;  Rankin  v.  Weguelin,  27  Beav.  309.  As  to  checks, 
see  Hewitt  v.  Kaye,  L.  E.  6  Eq.  198,  M.  R. ;  Bromley  v.  Brunton,  L.  R.  6  Eq. 
275,  V.-C.  S. 

(m)  Wood  V.  Turner,  2  Ves.  sen.  431 ;  Bryson  v.  Brownrigg,  9  Ves.  I  ;  Bunn  v.  Mark- 
ham,  7  Taunt.  224  (E.  C.  L.  R.  vol.  2)  ;  Ruddell  v.  Dobree,  10  Sim.  244;  Farquharson 
V.  Cave,  2  Coll.  356;  Powell  v.  Hellicar,  26  Beav.  261.. 

(o)  Tate  V.  Hilbert,  2  Ves.  jun.  Ill  ;  4  Bro.  C.  C.  286. 
.     (p)  Edwards  v.  Jones,  1  Myl.  &  Cr.  226  ;  Staniland  v.  Willott,  3  Mac.  &  Gord.  664. 

[q)  Blount  V.  Burrow,  4  Bro.  C.  C.  72  ;  Hills  v.  Hills,  8  M.  &  W.  401. 

(r)  7  Taunt.  232  (E.  C.  L.  R.  vol.  2).  (s)   1  P.  Wms.  406 ;  2  Ves.  sen.  434. 

(t)  Stat.  36  Geo.  III.  c.  52,  s.  7  ;  8  &  9  Vict.  c.  76,  s.  4. 

1  An  endeavor  to  determine  the  nature  by  comparing  the  English  and  American 
and  requisites  of  donations  cauna  mortis,     decisions  with   the  doctrines   and   priuci- 


328 


OF   PERSONAL   ESTATE   GENERALLY. 


The  mode  of  operation  of  a  will  of  personalty  is  essentially  different 


pies  of  the  civil  law,  must  produce  great 
embarrassment,  and  perhaps  end  in  con- 
fusion, as  will  be  seen  by  a  review  of  the 
two  cases  of  Wells  v.  Tucker,  3  Binn.  370, 
and  Nicholas  v.  Adams,  2  Whart.  17.  In 
contrasting  these  cases,  it  appears  that  in 
Pennsylvania  this  subject  has  undergone 
considerable  modification,  as  regards  the 
sentiments  entertained  of  its  qualities  and 
attributes  ;  in  the  former,  Chief  Justice 
Tilghrnan  says,  "^  donatio  causa  mortis,  is 
a  gift  of  a  personal  chattel,  made  by  a 
person  in  his  last  illness,  subject  to  an 
implied  condition,  that  if  the  donor  re- 
covers, the  gift  shall  be  void.  So  also  it 
shall  be  void  if  the  donee  dies  before  the 
donor.  In  this,  and  some  other  circum- 
stances (being  subject  to  the  debts  of  the 
donor,  &c.),  it  is  in  the  nature  of  a  legacy. 
...  It  is  a  wise  principle  of  our  law,  that 
the  delivery  is  essential,  because  delivery 
strengthens  the  evidence  of  the  gift.  Too 
much  care  cannot  be  taken  in  insisting  on 
the  most  convincing  evidence,  in  cases  of 
this  kind,  for  these  donations  do,  in  effect, 
amount  to  a  revocation  pro  tanto,  of  writ- 
ten wills ;  and  not  being  subject  to  the 
forms  prescribed  for  nuncupative  wills, 
they  are  certainly  of  a  dangerous  nature. 
Now  let  us  consider  the  delivery  which 
was  made  in  this  case.  In  the  first  place 
it  was  not  to  the  donee,  but  to  the  donor's 
wife,  to  be  delivered  over.  There  is  no 
objection  to  this  mode  of  delivery. 
Whether  made  to  the  donee  immediately, 
or  to  another  for  his  use,  is  immaterial.  .  . 
Without  absolutel}'  committing  mj'self,  I 
incline  to  the  opinion,  that  in  this,  as  in 
several  other  particulars,  it  partakes  of  the 
nature  of  a  legacy,  and  is  revocable.  .  .  . 
Upon  the  whole,  then,  the  donation  was 
perfect ;  it  was  made  in  the  testator's  last 
illness,  and  accompanied  with  the  delivery 
of  the  bonds,  which  is  all  that  the  nature 
of  the  case  admits  of."  Subsequently,  in 
the  case  of  Nicholas  v.  Adams,  Chief  Jus- 
tice Gibson,  after  quoting  from  the  civil 
law,  and  saying  that  there  is  not  one  word 
of  sickness  from  first  to  last,  proceeds  :  "  I 


would,  therefore,  briefly  define  a  donatio 
causa  mortis  to  be  a  conditional  gift,  de- 
pendent on  the  contingency  of  expected 
death.  ...  In  the  donatio  causa  mortis, 
both  are  implied  from  the  occasion.  But 
it  is  certainly  not  necessary  to  be  in  such 
extremity  as  is  requisite  to  give  effect  to 
a  nuncupation,  which  is  sustained  from 
necessity  merely,  where  the  donor  was 
prevented  by  the  urgency  of  dissolution, 
from  making  a  formal  bequest.  Donatio 
causa  mortis  is  sometimes  spoken  of  as 
being  distinct  from  a  gift  inter  vivos;  the 
former  having  sometimes  been  supposed 
to  be  made  in  reference  to  the  donor's 
death,  and  not  to  vest  before  it,  but  in- 
accurately, as  it  seems  to  me  ;  as  this  gift, 
like  every  other,  is  not  executory,  but 
executed  in  the  first  instance,  by  delivery 
of  the  thing,  though  defeasible  by  reclama- 
tion, the  contingency  of  survivorship,  or 
deliverance  from  peril.  The  gift  is  conse- 
quently inter  vivos.  All  agree  that  it  has 
no  property  in  common  with  a  legacj',  ex- 
cept that  it  is  revocable  in  the  donor's 
lifetime,  and  subject  to  his  debts  in  the 
event  of  deficiency.  I,  therefore,  cannot 
subscribe  to  the  doctrine,  that  the  making 
of  a  subsequent  will,  is  conclusive  evi- 
dence of  the  gift  having  not  been  made 
during  such  a  last  illness,  as  the  law  re- 
quires ;  and  that  if  the  degree  of  sickness 
was  such  as  to  induce  an  expectation  of 
immediate  death,  the  subsequent  making 
of  a  formal  will  is  conclusive  that  the 
donor  had  escaped  from  the  peril  of  death, 
which  he  supposed  to  impend  at  the  time 
of  the  gift;  and  that  under  these  circum- 
stances, it  cannot  take  effect  as  a  donatio 
causa  mortis.  ...  To  say  nothing  of  the 
fallacy,  that  the  making  of  a  will  indicates 
even  a  respite  from  sickness,  or  the  appre- 
hension of  death,  a  disposition  by  donatio 
causa  mortis,  is  not  to  be  disturbed  by  the 
alternation  of  hope  and  despair,  dependent 
on  the  doubtful  spinning  of  the.  die,  but 
only  by  the  turn-up  of  life." 

By    the    still    more    recent    decision    of 
Hea'dley  v.  Kirby,  18  Penn.  St.  326,  Judge 


OF   A   WILL.  328 

from  the  operation  of  a  will  of  lands  in  this  respect,  that  in  strictness 


Lowrie  utterly  repudiates  the  idea,  that 
the  civil  law  can  be  of  any  practical 
assistance  in  determining  the  attributes 
of  donations  of  this  description,  saying, 
"  Though  we  derive  the  law  as  to  dona- 
tiones  mortis  causa,  from  the  Roman  law- 
yers, yet  their  rules  on  that  subject  are 
no  guide  to  us  in  the  administration  of 
our  law,  for  the  stringent  severity  of  their 
law  of  wills,  occasioned  and  excused 
larger  equitable  exceptions,  by  way  of 
gifts  in  prospect  of  death,  than  can  at  all 
be  sanctioned  under  our  much  more 
reasonable  statute  of  wills." 

What  then  is  a  donatio  causa  mortis,  con- 
sidered with  regard  to  the  American  cases, 
only?  Many  of  them  define  it  as  a  gift 
made  by  a  person  in  his  last  illness,  sub- 
ject to  the  implied  condition,  that  if  the 
donor  recovers  the  gift  shall  be  void : 
Wells  w.  Tucker,  3  Binn.  370;  Weston  v. 
Hight,  17  Maine  287  ;  Grattan,  Admr.,  v. 
Appleton  et  al.,  3  Story  755 ;  Harris  v. 
Clark  et  al.,  Exrs.,  2  Barb.  94  ;  Hebb  et  al., 
Exrs.,  V.  Hebb,  Exrx.,  5  Gill  506;  Lee  v. 
Luther,  3  Wood.  &  M.  524  ;  Michener  v. 
Dale,  23  Penn.  St.  59  ;  Merchant  v.  Mer- 
chant, 2  Bradf.  432 ;  Avhile  others  say, 
that  it  must  be  made  in  expectation  of 
death;  Nicholas  v.  Adams,  2  Whart.  17; 
Raymond  v.  Sellick  et  al.,  Admrs.,  10 
Conn.  480  ;  Holly  v.  Adams,  16  Vt.  206  ; 
Smith,  Admr.,  v.  Downey,  Admr.,  3  Ired. 
Eq.  268 ;  Dole,  Admr.,  v.  Lincoln,  31 
Maine  422  ;  Huntington,  Exr.,  v.  Gilmore, 
14  Barb.  243 ;  Michener  v.  Dale,  23  Penn. 
St.  59 ;  Merchant  v.  Merchant,  2  Bradf. 
432  ;  but  in  all  of  the  latter  cases,  the 
donor  was  actually  ill  of  the  sickness  of 
which  he  died;  and  in  Rhodes  v.  Childs, 
64  Penn.  St.  18 ;  confirming  Gourley  v. 
Linsenbigler,  51  Id.  345,  it  was  held  that 
in  order  that  the  validity  of  such  a  gift 
should  be  established,  the  donee  must 
show  that  it  was  made  in  the  donor's  last 
illness,  in  apprehension  of  death,  and  upon 
condition  that  it  was  to  take  effect  only 
on  the  donor's  death  by  his  existing  dis- 
order, or  in  his  illness ;  if,  however,  the 
donor   is   neither   out   of  health,   nor   in 


apprehension  of  death,  he  cannot  make  a 
valid  donatio  mortis  causa ;  Smith  et  al.  v. 
Kittridge,  Admr.,  21  Vt.  238;  Sessions  v. 
Moseley,  4  Cush.  87. 

A  gift  by  a  volunteer  soldier,  in  daily 
expectation  of  being  ordered  to  the  seat  of 
war,  made  to  a  friend  in  the  presence  of 
witnesses,  to  keep  until  his  return,  and  if 
he  did  not  return,  the  property  to  belong 
to  the  donee,  has  been  held  not  to  be  a 
gift  by  reason  of  death,  although  the  donor 
died  ten  months  afterwards  in  service : 
Irish  V.  Nutting,  47  Barb.  370  ;  Gourley  v, 
Lesenbigler,  51  Penn.  St.  345.  But  see 
Gass  V.  Simpson,  4  Cold.  288. 

In  all  cases  of  gifts  in  expectation  of 
death,  delivery  is  absolutely  essential  : 
Bowers  v.  Hurd,  Admr.,  10  Mass.  427 ; 
Windows  v.  Mitchell,  1  Murph.  127  ;  Shir- 
ley V.  Whithead,  1  Ired.  Eq.  130;  Craig  t). 
Craig,  2  Barb.  Ch.  78  ;  Lewis  v.  Walker,  8 
Humph.  503;  Jones,  Admr.,  y.  Deyer,  16 
Ala.  221;  McCraw  v.  Edwards  et  al.,  6 
Ired.  Eq.  202  ;  Chevallier,  Admr.,  v.  Wil- 
son, 1  Texas  161  ;  Hitch  v.  Davis  et  al.,  3 
Md.  Ch.  Decs.  266  ;  Michener  v.  Dale,  23 
Penn.  St.  59;  Singleton  v.  Cotton,  23  Geo. 
261.  If  possible,  the  gift  should  be  put 
into  the  hands  of  the  donee :  Harris  v. 
Clark,  3  Comst.  93  ;  McDowell  v.  Murdock, 
1  N.  &  McCord  239  ;  Pennington,  Admr., 
V.  Gettiugs,  Exr.,  2  G.  &  Johns.  208  ;  Win- 
dows V.  Mitchell,  1  Murph.  127;  Smith, 
Admr.,  v.  Downey,  Admr.,  3  Ired.  Eq.  268  ; 
Miller  v.  Jeffres  et  al.,  4  Gratt.  479  ;  Cut- 
ting V.  Gilman,  41  N.  H.  147  ;  but,  if  not 
capable  of  actual  delivery,  to  the  donee, 
the  means  of  obtaining  it  should  be  de- 
livered: Harris  v.  Clark,  3  Comst.  93,  and 
other  cases  just  cited.  That  an  after-ac- 
quired possession  of  the  thing  given,  or  a 
previous  and  continuing  possession  of  it, 
will  not  dispense  with  the  necessity  of  a 
delivery,  see  Milleri'.  Jeffres  et  al.,  4  Gratt. 
479,  where  Judge  Baldwin  says:  "A  de- 
livery is  indispensable  to  the  validity  of  a 
donatio  mortis  causa.  It  must  be  an  actual 
delivery  of  the  thing  itself,  as  of  a  watch 
or  a  ring  ;  or  of  the  means  of  getting  the 
possession  and  enjoyment  of  the  thing,  as 


328 


OF  PERSONAL  ESTATE  GENERALLY. 


the  appointment,  of  an  executor  was  formerly  essential  to  a  will  of  per- 


of  the  key  of  a  trunk  or  a  warehouse,  in 
which  the  subject  of  the  gift  is  deposited  ; 
or  if  the  thing  be  in  action,  of  the  instru- 
ment by  using  which,  the  chose  is  to  be  re- 
duced into  possession,  as  a  bond,  or  a  re- 
ceipt, or  the  like It  is  not  the 

possession  of  the  donee,  but  the  delivery 
to  him  by  the  donor,  which  is  material  in 
VI.  donatio  mortis  causa ;  the  delivery  stands 
iu  the  place  of  nuncupation,  and  must  ac- 
company and  form  a  part  of  the  gift ;  an 
after-acquired  possession  of  the  donee  is 
nothing  ;  and  a  previous  and  continuing 
possession,  though  by  the  authority  of  the 
donor,  is  no  better.  The  donee,  by  being 
the  debtor,  or  bailee,  or  trustee  of  the 
donor,  in  regard  to  the  subject  of  the  gift, 
stands  upon  no  better  footing  than  if  the 
debt  or  duty  were  owing  from  a  third  per- 
son. A  debt  or  duty  cannot  be  released 
bv  mere  parol,  without  consideration  ;  and 
where  there  is  nothing  to  surrender  by  de- 
livery, the  only  result  is,  that  in  such  a 
case,  there  cannot  be  a  donatio  mortis 
cdusa ;  and  the  release,  without  valuable 
consideration  therefor,  must  be  by  testa- 
ment, or  by  some  instrument  of  writing 
which  would  be  effectual  for  the  purpose 
inter  vivos:"  French  i\  Raymond,  39  Vt. 
623.  See,  however,  Champney  v.  Blanch- 
ard, 39  N.  Y.  111. 

But  a  delivery  to  a  third  person  to  be  by 
him  delivered  over  to  the  donee,  has  been 
held  a  good  delivery  :  Wells  v.  Tucker,  3 
Binn.  370  ;  Bonneman,  Admr.,  v.  Sidlinger 
et  al.,  15  Maine  429,  and  21  Id.  185  ;  Cou- 
tant  V.  Schuyler  et  al.,  1  Paige  316  ;  Jones, 
Admr.,tJ.  Deyer,  16  Ala.  221  ;  Dale,  Admr., 
V.  Lincoln,  31  Maine  422  ;  Sessions  v. 
Moseley,  4  Cush.  87  ;  Michener  v.  Dale,  23 
Penn.  St.  59  ;  Dresser  ik  Dresser,  46  Maine 
48  ;  Kemper  v.  Kemper,  1  Duvall  401  ;  and 
in  the  case  of  Richardson  v.  Adams,  10 
Yerg.  273,  where  the  testator  gave  express 
directions  to  a  residuary  legatee,  to  de- 
liver an  article  of  property  to  an  individ- 
ual as  a  gift,  and  such  legatee  promised 
the  testator  that  he  would  deliver  it,  the 
Court  of  Chancery  declared  the  legatee  a 


trustee,  and  enforced  a  delivery  of  the 
article.  But  the  court  refused  to  extend 
this  rule,  and  in  the  following  case  de- 
clared no  trust  was  created,  because  the 
promise  was  not  made  to  the  testatrix  by 
the  residuarj'  legatee,  but  by  an  executor, 
who  subsequently  declined  acting:  Sims 
V.  Walker,  8  Humph.  503  ;  and  the  deliv- 
ery of  any  such  gift,  in  trust  for  benevo- 
lent purposes,  has  been  held  void :  Dole, 
Admr.,  v.  Lincoln,  31  Maine  422. 

Gifts  causa  mortis  differ  from  those  i}iter 
vivos,  in  that  they  may  be  made  to  a  wife, 
or  husband,  are  subject  to  the  debts  of  the 
donor,  and  revocable  by  him  during  his 
life,  besides  being  subject  to  the  contin- 
gency of  the  donee  surviving  the  donor: 
Harris  v.  Clark  et  al.,  Exrs.,  2  Barb.  94; 
Wells  V.  Tucker,  3  Binn.  370  ;  Meach  v. 
Meach  etal.,  24  Vt.  591  ;  Marshall  v.  Berry, 
13  Allen  43  ;  though  Chief  Justice  Gibson, 
in  Nicholas  v.  Adams,  as  we  have  seen, 
denies  that  there  is  any  difference  between 
them,  at  the  time  of  the  gift,  where  he 
says,  "  This  gift,  like  every  other,  is  not 
executory,  but  executed,  in  the  first  in- 
stance, by  delivery  of  the  thing,  though 
defeasible  by  reclamation,  the  contingency 
of  survivorship,  or  deliverance  from  peril. 
The  gift  is  consequently  inter  vivos.  And 
see  Bedell  v.  Carll,  33  N.  Y.  581.  In  those 
respects  in  which  these  gifts  differ  from 
those  i?iter  vivos,  they  resemble  legacies  ; 
thus,  they  are  subject  to  the  debts  of  the 
donor  :  Wells  v.  Tucker,  3  Binn.  370  ;  Bon- 
nerman,  Admr.,  v.  Sidlinger  et  al.,  15 
Maine  429  ;  Harris  v.  Clark  et  al.,  Exrs.,  2 
Barb.  94  ;  Gaunt  v.  Tucker,  18  Ala.  27  ; 
Huntington,  Exr.,  v.  Gilmore,  14  Barb. 
243;  Michener  V.  Dale,  23  Penn.  St.  59; 
Bloomer  v.  Bloomer,  2  Bradf.  339 ;  and 
they  are  revocable  by  the  donor  during  his 
lift,  as  well  as  given  upon  the  implied 
condition,  that  if  the  donee  dies  before  the 
donor,  the  gift  shall  fail :  Wells  v.  Tucker, 
3  Binn.  370  ;  Huntington,  Exr.,  v.  Gilmore, 
14  Barb.  243  ;  Parker  v.  Marston,  27  Maine 
196  ;  Jones  v.  Brown,  34  N.  H.  439  ;  Rhodes 
V.  Childs,  64  Penn.  St.  18  ;  but  they  differ 


OF  A   WILL. 


328 


sonalty  ;(ii)  and,  at  the  present  day,  the  usual  and  proper  method  is  to 

(m)  Wentworth's  Executors  3,  4,  14th  ed.  ;  2  Black.  Com.  503. 


from  legacies,  in  that  they  do  not  require 
the  assent  of  the  legal  representative  of 
the  decedent,  to  make  a  good  title  in  the 
donee  :  Doyle,  Admr.,  v.  Lincoln,  31  Maine 
422  ;  Gourley  v  Linsenbigler,  51  Penn.  St. 
345. 

Negotiable  securities,  which  pass  by  de- 
livery, may  be  the  subject  of  a  gift  in  view 
of  death  :  Grover  v  Grover,  24  Pick.  261 ; 
Bradley  v.  Hunt,  Admr.,  5  Gill  &  Johns. 
58 ;  in  which  last  case,  Chief  Justice 
Buchanan  remarks:  "To  constitute  a 
donatio  causa  mortis,  the  gift  should  be  full 
and  complete  at  the  time,  passing  from  the 
donor  the  legal  power  and  dominion  over 
the  thing  intended  to  be  given,  and  leaving 
nothing  to  be  done  by  him,  or  his  execu- 
tor, to  perfect  it.  Hence,  bank  notes  are 
the  subject  of  such  gifts,  they  being  con- 
sidered as  money,  and  the  property  in 
them  passing  by  delivery ;  and  so,  as  to 
promissory  notes  payable  to  bearer,  which 
pass  by  delivery,  and  the  property,  and 
legal  dominion  over  the  thing  intended  to 
be  given,  passing  with  the  possession  from 
the  donor  to  the  donee,  they  do  not  re- 
quire to  be  sued  in  the  name  of  the  execu- 
tor, and  nothing  is  necessary  to  be  done 
by  him  to  perfect  the  gift  of  the  money. 
But  not  so  with  the  delivery  of  a  promis- 
sory note  payable  to  order,  which  has  been 
held  to  be  insufficient  to  pass  to  the  donee 
the  money,  the  thing  intended  to  be  given  ; 
upon  the  ground,  that  no  property  in  it 
passes  by  delivery  ;  and  being  a  mere 
chose  in  action,  it  must,  notwithstanding 
the  delivery,  be  sued  in  the  name  of  the 
executor.  So  that  the  gift  of  money  is 
not  complete  at  the  time,  the  legal  do- 
minion over  it  remaining  in  the  donor,  and 
on  his  death,  passing  to  his  executor, 
without  the  use  of  whose  name  it  cannot 
be  perfected.  This  may  seem  to  be  tech- 
nical ;  but  if  the  rule  is  admitted,  that  a 
delivery  of  the  thing  intended  to  be  given, 
is  essential  to  the  perfection  of  the  gift,  it 
must  follow,  that  a  promissory  note,  pay- 
able to  order,  is  not  capable  of  being  the 


subject  of  a  donatio  mortis  causa.  And  if 
we  were  at  liberty  to  do  so,  vre  should  not 
be  disposed  to  relax  the  rule,  which  would 
be  to  open  still  wider  the  door,  already 
sufficiently  wide,  to  frauds,  and  perjuries, 
and  the  exercise  of  undue  influence,  by  the 
artful  and  designing,  upon  the  weak  and 
unwary." 

By  more  recent  decisions,  however,  "  It 
seems  now  to  be  well  settled,  that  any 
chose  in  action,  whether  negotiable  or  not, 
whether  simple  contract  or  specialty,  if 
it  be  the  contract,  or  promise,  of  some 
other  than  the  donor,  and  do  not  consti- 
tute any  obligation  upon  the  donor,  may, 
by  mere  delivery,  constitute  a  good  gift 
by  reason  of  anticipated  death  :"  Meach  v. 
Meach  et  al.,  24  Vt.  291  ;  Brunson  v.  Brun- 
son,  1  Meigs  630  ;  Bonneman,  Admr.,  v. 
Sidlinger  et  al.,  21  Maine  185  ;  hence,  a 
bond  is  the  subject  of  such  a  gift :  Wells  v. 
Tucker,  3  Binn.  370;  Braitley  v.  Hunt, 
Admr.,  5  G.  &  Johns.  58  ;  Harris  v.  Clark  et 
al.,Exrs.,2Barb.  94  ;  Miller w.Jefifress  etal., 
4  Gratt.  479;  Waring  v.  Edmonds,  11  Md. 
424  ;  Caldwell  v.  Renfrew,  33  Vt.  213  ;  and 
a  certificate  of  deposit :  Westerlo  v.  De 
W^itt,  36  N.  Y.  340 ;  and  a  policy  of  life 
assurance:  Gourley  v.  Linsenbigler,  51 
Penn.  St.  345 ;  or  a  check  on  a  banker, 
Id.  ;  and  so,  of  the  note  of  a  third  persou  : 
Bonneman  v.  Sidlinger  et  al.,  15  Maine 
429;  Holly  y.  Adams,  Admr.,  16  Vt.  206; 
Parker  r.  Marston,  27  Maine  196;  Harris 
V.  Clark  etal.,  Exrs.,  2  Barb.  94;  Smith  et 
al.  f.  Kittridge,  Admr.,  21  Vt.  238;  Ses- 
sions V.  Moseley,  4  Cash.  78 ;  Bates  v. 
Kempton,  7  Gray  382  ;  Chase  v.  Redding, 
13  Id.  418  ;  Turpin  v.  Thompson,  2  Mete. 
(Ky.)  420 ;  for,  as  was  said  in  the  case  of 
Coutant  V.  Schuyler  et  al.,  1  Paige  316, 
"  Notwithstanding  the  attempts  which 
have  been  made  in  England,  to  distin- 
guish between  a  promissory  note  aiul  a 
bond,  in  relation  to  the  validity  of  a  gift 
of  a  chose  in  action,  there  cannot,  in 
reason,  by  any  difference.  A  gift  of 
either  is  valid,  as  a  symbolical  delivery  of 


328  OF    PERSONAL   ESTATE    GENERALLY. 

appoint  an  executor  as  to  the  personal  estate ;  whereas  under  a  devise  of 


the  debt  due  on  the  note,  or  bond,  and 
all  the  deliverj'  of  which  the  subject  is 
capable."  And  the  fact,  that  the  note  is 
payable  to  order,  and  unendorsed,  will 
not  alter  the  case  :  Harris  v.  Clark  et  al., 
Exrs.,  2  Barb.  94  ;  Brown,  Exr.,  v.  Brown 
et  al.,  18  Conn.  410  ;  Gourley  t).  Linsenbig- 
ler,  51  Penn.  St.  34.5.  But  that  a  valid 
gift,  in  prospect  of  death,  cannot  be  made 
of  a  certificate  of  stock,  see  Pennington 
Admr.  v.  Gitting's  Exr.,  2  G.  &  Johns. 
208,  and  Westerlo  v.  De  Witt,  35  Barb. 
215;  nor  will  money  deposited  in  a  bank, 
pass  by  the  deliver^'  of  the  pass  book  : 
Ashbrook  v.  Ryan,  2  Bush  228.  It  has 
been  held,  that  a  sealed  note,  will  not 
pass  by  delivery  only,  and  without  en- 
dorsement: Overton  v.  Sawyer,  7  Jones  L. 
6.  And  see  Phipps  v.  Hope,  16  Ohio  St. 
586. 

It  was  at  one  time  held  that  the  dece- 
dent's own  note,  could  be  made  to  operate 
as  a  gift  by  reason  of  death  :  Wright  v. 
Wright  et  al.,  1  Cowen  598  ;  Bowers  v. 
Hurd,  Admr.,  10  Mass.  427  ;  McConnell  v. 
McConnell,  11  Vt.  290;  Jones,  Admr.,  «. 
Deyer,  16  Ala.  221  ;  but  these  cases  were 
overruled,  and  the  opinion  at  present  pre- 
vailing, is  against  the  validity  of  such  a 
gift :  Parish  v.  Stone,  14  Conn.  198  ;  Ray- 
mond V.  Sellick  et  al.,  Admr.,  10  Id.  480  ; 
Craig  V.  Craig,  2  Barb.  Ch.  78  ;  Smith  et 
al.  V.  Kittridge,  Admr.,  21  Vt.  238  ;  Brown 
V.  Moore,  3  Head  671.  "A  mere  promise," 
said  Judge  Hibard  in  the  case  of  Holly  v. 
Adams,  Admr.,  16  Vt.  206,  "to  pay  a  sum 
of  money  is  not  a  donatio  causa  mortis, 
within  the  meaning  of  the  law.  .  .  .  This 
was  not  a  gift ;  it  was  merely  a  promise  to 
give,  and  required  the  same  interposi- 
tions of  law  to  make  it  available,  that  are 
required  in  any  case.  ...  I  am  unable  to 
see  any  distinction  in  principle,  or  indeed 
any  reason,  why  a  note  of  a  third  person 
may  not  as  well  pass  by  a  gift  causa  mortis, 
as  a  horse,  or  a  piece  of  furniture,  or  any 
other  species  of  personal  property.  .  .  . 
The  doctrine  of  the  case  from  lOth  Mass., 
before  alluded  to,  upon  which  the  plaiu- 


tiff  has  relied,  is,  that  where  the  maker  of 
a  note  has  acknowledged  that  it  was  given 
for  value,  he  is  not  at  liberty  to  deny  it. 
.  .  .  But  although  that  doctrine  once  ob- 
tained in  Massachusetts,  it  is  not  law  there 
now,  and  I  am  not  aware  that  it  was  ever 
adopted  in  this  State.  We  think,  there- 
fore clearly,  that  this  note  was  but  the 
evidence,  which  the  daughter  held,  that 
the  deceased,  in  his  lifetime,  had  promised 
to  give  her  the  sum  of  monej^  therein  ex- 
pressed, and  to  be  treated  like  any  other 
note  which  is  void  for  want  of  a  consider- 
ation." So  in  the  case  of  the  donor's  own 
draft,  or  order,  upon  some  third  person, 
Judge  Gridley,  in  Harris  v.  Clark  et  al., 
Exrs.,  2  Barb.  94,  delivered  an  opinion 
somewhat  analogous  to  the  one  just  pre- 
ceding, as  follows  :  "  The  question  is, 
■whether  the  executory  promise  of  the 
donor,  made  without  consideration,  can 
be  made  the  subject  of  a  gift  ca^isa  mortis. 
Such  a  gift  inter  vivos,  has  been  held  void 
for  the  want  of  a  legal  consideration  to  sup- 
port the  promise,  in  several  adjudged 
cases,  in  this  court.  .  .  .  The  gift  was 
merely  a  void  promise,  which  though  sub- 
sisting in  the  form  of  a  written  security, 
was  as  valueles  as  waste  paper,  and  there- 
fore incapable  of  being  made  the  subject 
of  a  delivery  or  donation.  ...  So  far  as 
it  represents  a  valid  claim  against  a  third 
person,  we  can  see  no  force  in  the  direc- 
tion that  it  was  not  delivered.  But  inas- 
much as  it  is  sought  to  be  enforced  against 
the  executors  of  the  donor,  as  represent- 
ing and  creating  a  legal  obligation  upon 
him,  and  available  against  them,  as  the 
representatives  of  the  estate,  it  appears  to 
us  to  be  open  to  the  objections  :  1st,  That 
being  without  consideration,  it  was  a  void 
promise,  incapable  of  being  made  the  sub- 
ject of  a  delivery,  or  a  gift ;  and  2d,  That 
the  draft  being  intended  as  a  voluntary 
gift,  rebuts  the  implication,  which  might 
otherwise  arise,  of  a  guarantee  on  the  part 
of  the  drawer,  that  the  draft  should  be  ac- 
cepted and  paid."  And  see  also,  3  Comst. 
93,  and  Craig  v.  Craig,  3  Barb.  Ch.  78  ;  Mich- 


i 


OF   A   WILL. 


328 


landed  property,  the  lands  pass  at  once  to  the  devisee,  and  the  interven- 
tion  of  an   executor   is   quite  unnecessary   and   inapplicahle.(i;)^      The 

(v)  In  the  goods  of  Harden,  Law  Rep.  1  P.  &  D.  325. 


ener  v.  Dale,  23  Penn.  St.  59 ;  Candor  & 
Henderson's  Ap.,  27  Id.  119  ;  Flint  v.  Pat- 
tee,  33  N.  H.  520  ;  Second  Nat.  Bank  v. 
Williams,  13  Mich.  282. 

The  title  to  real  estate  will  not  pass  by 
a  donatio  causa  mortis  :  Meach  v.  Leach  et 
al.,  24  Vt.  591 ;  and  in  the  case  of  Head- 
ley  V.  Kirby,    18   Penn.    St.    226,    it   was 
decided,  that  a  decedent  cannot  thus  dis- 
pose of  all  his  property.   Judge   Lowrie 
using  the  following  language :  "It  is  not  pre- 
tended that  any  gift  like  this  has  ever  been 
held  good,  and  it  may  be  safely  declared  that 
no  mere  gift  made  in  prospect  of  death, 
and  professing  to  pass  all  one's  property 
to  another,  to  take  effect  after  death,  can 
be  valid   under   our  statute  of  wills,  no 
matter  what  delivery  may    have    accom- 
panied it.     If  this  is  not  true,  then  it  is 
plain  that  the  statute  of  wills,  so  far  as  it 
is  intended  to  exclude  all  modes  of  dis- 
posing   of    personal    property    at   death, 
which  it  does  not  provide  for,  is  repealed 
by  the  decisions  of  the  courts."     But  sub- 
sequently, in  the  case  of  Meach  v.  Meach 
et  al.,  24  Vt.  591,  in  which  the  Pennsyl- 
vania case  appears  to  have  been  fully  ex- 
amined, it  was  held,  that  a  gift  of  all  one's 
personal  property  in   view  of  death  was 
valid,  and  in  a  note  to  that  case,  the  ques- 
tion as  to  the  amount  or  value  of  property 
which  may  pass  by  a  donatio  mortis  causa, 
is  thus  considered:  "  I  find  no   case,  ex- 
cept the  late  case  in  Pennsylvania,  where 
any  attempt  has   been  made  to  limit  its 
operation,  on  account  of  the  comparative 
or  absolute  extent  of  the  property  disposed 
of.     And  the  more  I  have  reflected  on  the 
subject,  and  compared  the  cases,  with  a 
view  to  evolve  some  rational  and  practi- 
cable principle  of  limitation  to  the  extent 
of  its  operation,  the  more  I  have  felt  con- 
strained to  declare,  that  it  cannot  be  done 
by  any  powers  of  abstraction  or  general- 
ization, which  my  short  sight  is  able  to 
command."     See   also,  Michener  v.  Dale, 
23  Penn.  St.  59. 


A  delivery  of  a  deed  of  a  gift,  without  a 
delivery  of  the  thing  given,  is  not  suffi- 
cient to  pass  the  title  by  way  of  a  donatio 
causa  mortis:  Smith,  Admr.,  v.  Doaney, 
Admr.,  3  Ired.  Eq.  2G8  ;  and  any  such  deed 
of  gift  must  be  proved  as  a  will :  Grattan, 
Admr.,  v.  Appleton  et  al.,  3  Story  755  ; 
Miller  v.  Jeffress  et  al.,  4  Gratt.  479.  But 
see  Exrs.  of  Blake  v.  Low,  3  Desaus.  266 ; 
Brinkerhoff"  v.  Lawrence,  Admr.,  &c.,  2 
Sandf.  Ch.  400;  Meach  v.  Meach  et  al., 
24  Vt.  291. 

A  donatio  causa  mortis  may  be  upon  a 
condition,  other  than  those  which  are  im- 
plied from  the  very  nature  of  such  a  gift : 
Currie  v.  Steele  et  al.,  2  Sandf.  542. 

2  The  testamentary  disposition  of  pro- 
perty, without  the  appointment  of  an 
executor,  is,  in  technical  language,  de- 
nominated a  codicil ;  for,  "  a  codicil  is  a 
just  sentence  of  our  will,  touching  that ' 
which  any  would  have  done  after  their 
death,  without  the  appointing  of  an  execu- 
tor. Which  definition  doth  agree,  almost 
word  for  word,  with  the  definition  of  a 
testament;  saving  that  some  words  are 
here  expressed,  which  are  there  omitted, 
absque  executoris  constilutione,  without  the 
appointment  of  an  executor.  By  force  of 
which  words,  the  codicil  is  made  to  difi"er 
from  a  testament ;  for  a  testament  can  no 
more  consist  or  be  without  an  executor, 
than  a  codicil  can  admit  an  executor.  .  .  . 
Whereupon,  the  writers,  conferring  a  tes- 
tament and  a  codicil  together,  and  per- 
ceiving the  odds  betwixt  the  one  and  the 
other,  they  call  a  testament  a  great  will, 
and  a  codicil  a  little  will.  And  do  com- 
pare the  testament  to  a  ship,  and  the 
codicil  to  a  boat,  tied  most  commonly  to 
the  ship.  And  not  unjustly,  as  well 
because  the  codicil  is  not  able  to  sustain 
the  heavy  burden  of  an  executor,  who, 
representing  the  person  of  the  testator 
doth,  as  it  were  (like  Atlas,  who  is  feigned 
to  carry  the  world  on  his  shoulders), 
bear  upon  his  back  the  whole  mass  and 


328 


OF   PERSONAL   ESTATE    GENERALLY. 


executor  of  a  will  of  personal  estate  becomes  entitled,  from  the  moment 
of  the  death  of  the  testator,  to  all  his  personal  property,(3:)  which  after 
payment  of  the  debts  of  the  deceased  he  is  bound  to  apply  according  to 
the  directions  of  the  will.  Thus  if  the  testator  should  specifically  be- 
queath any  part  of  his  personal  property,  the  property  so  bequeathed 
will  not  belong  absolutely  to  the  legatee  until  the  executor  has  assented 
to  the  bequest  f  and  this  assent  must  not  be  given  until  the  executor  is 


{x)  Co.  Litt.  388  a ;  Com.  Dig.  tit.  Biens  (C)  ;  Williams  on  Executors,  pt.  2,  bk.  2. 


weight  of  all  the  goods  and  chattels, 
which  did  belong  to  the  deceased,  and 
on  whose  neck  are  laid  all  the  actions, 
which  either  might  be  intended  against 
the  testator,  by  others,  or  against  others, 
by  the  testator,"  &c.  :  Swineburne  on 
Wills,  vol.  1,  part  1,  sec.  5,  pp.  28,  29. 

'  A  legatee's  title  is  not  perfect,  until 
the  executor  has  assented  to  his  legacy : 
Moore  v.  Barry,  1  Bail.  504 ;  Lenor  v.  Syl- 
vester, Id.  504  ;  Upchurchv.  Norsworthy,  12 
Ala.  532 ;  Kelly's  Admr.  v.  Kelly's  Dis- 
tributees, 9  Id.  908;  Rea  v.  Rhodes,  5  Ired. 
Eq.  148  ;  Johnson  v.  The  Connecticut  Bank, 
21  Coun.  156 ;  Saggs  v.  Sapp,  20  Geo. 
100;  and  this  is  true  of  every  kind  of  be- 
quest ;  as  well  of  specific  :  Moore  v.  Barry, 
1  Bail.  504  ;  Lenoir  v.  Sylvester,  Id.  504  ; 
Smith  V.  Towne's  Admr.  4  Munf.  191  ; 
Lillard  v.  Reynolds,  3  Ired.  370  ;  Everitt  v. 
Lane,  2  Ired.  Eq.  550  ;  Frouty  v.  Frouty, 
1  Bail.  Ch.  51Y  ;  Lark  et  al.  v.  Linstead  et 
al.,  2  Md.  Ch.  Decs.  162;  Crist  v.  Crist, 
Admr.,  1  Cart.  570  ;  as  of  general :  Wilson 
V.  Rine,  1  Har.  &  Johns.  138 ;  Lark  et  al. 
V.  Linstead  et  al.,  2  Md.  Ch.  Decs.  162  ;  Crist 
V.  Crist,  Admr.,  1  Cart.  570.  And  the  assent 
ofthe  legatee  is  equally  necessary  :  Johnson 
V.  The  Connecticut  Bank,  21  Conn.  156. 

But  "  a  very  slight  assent,"  on  the  part 
of  the  executor,  "is  held  sufficient;  and  it 
may  be  either  express  or  implied,  absolute 
or  conditional.  He  may  not  only,  in  di- 
rect terms,  authorize  the  legatee  to  take 
possession,  but  his  assent  may  be  inferred, 
either  from  direct  expressions,  or  particu- 
lar acts,  and  such  constructive  permis- 
sion will  be  equally  available.  His  assent 
may  be  implied ;  as,  if  the  executor  con- 
gratulate   the    legatee,"    &c.  :    Lynch    v. 


Thomas,  3  Leigh  686  ;  Lillard  v.  Reynolds, 
3  Ired.  37)  ;  Hearne  v.  Kevan  et  al.,  2  Ired. 
Eq.  34  ;  Chester  et  al.  v.  Greer  et  al.,  5 
Humph.  26  ;  Hudson,  Exr.,  &c.,  v.  Reeve, 
1  Barb.  89;  Rea  v.  Rhodes,  5  Ired.  Eq. 
148;  Cox  V.  McKinney,  32  Ala.  461;  Ed- 
ney  v.  Bryson,  2  Jones  L.  365  ;  and  he  may 
by  imjjlication  assent  to  a  legacy  to  him- 
self: Hearne  v.  Kevan  et  al.,  2  Ired.  Eq. 
34  ;  Hudson,  Exr.,  &c.,  v.  Reeve,  1  Barb. 
89 ;  Walker  v.  Walker,  26  Ala.  262.  In 
accordance  with  these  principles,  it  has 
been  held,  that  the  mere  acquiescence  of 
the  executor,  without  any  formal  consent, 
is  sufficient,  where  the  subject-matter  of 
the  legacy,  is  in  the  hands  of  the  legatee, 
at  the  death  of  the  testator :  Andrews, 
Exrx.,  V.  Hunneman  et  al.,  6  Pick.  126; 
Lowry «;.  Mountjoy,  6  Call  55  ;  Finch  et  al. 
V.  Rogers,  11  Humph.  583;  in  which  it 
was  said,  that,  "  In  such  case,  the  legatee 
being  actually  in  possession,  and  that,  too, 
by  the  act  of  the  testator,  in  his  lifetime, 
the  reason  of  the  rule,  which  requires  the 
executor's  assent,  does  not  seem  to  apply. 
The  executor,  in  the  case  stated,  would 
not  be  chargeable  with  such  chattel ;  it 
would  not  be  assets  in  his  hands;  nor 
could  he  maintaifa  any  action  against  the 
legatee  for  its  recovery,  except  in  the 
event  of  a  deficiency  of  assets,  to  discharge 
the  debts  of  the  estate,  after  having  fully 
administered  the  residue  of  his  personal 
estate."  So,  too,  the  assent  of  the  execu- 
tor to  a  specific  legacy,  will  be  presumed, 
after  possession  by  the  legatee,  for  a  con- 
siderable time  :  Alexander  v.  Williams,  2 
Hill  (S.  C.)  522  ;  White  v.  White,  4  Dev. 
257  ;  Merritt  v.  Windley,  3  Id.  399  ;  White 
V.  White,  4  Dev.  &  Bat.    401 ;    Birney  v. 


OF   A   WILL. 


328 


satisfied  that  there  is  sufficient  to  pay  the  debts  of  the  deceased 
*without  having  recourse  to  the  property  so  specifically  given. (3/)    L         -J 

If  the  testator  should  appoint  as  his  sole  executor  an  infant  under  the 
age  of  twenty-one  years,  such  infant  will  not  be  allowed  to  exercise  his 

[y)  Toller's  Executors,  bk.  3,  s.  2  ;  Williams  on  Executors,  pt.  3,  bk.  3,  cli.  4,  s.  3. 


Richardson,  5  Dana  424  ;  Squires  v.  Old, 
7  Humph.  454;  Rea  v.  Rhodes,  5  Ired.  Eq. 
148 ;  Jordan  v.  Thornton  et  al.,  7  Geo. 
517  ;  Lottt'.  Meacham,  4  Fla.  144  ;  Finch  et 
al.  V.  Rogers,  1 1  Humph .  563 ;  Gums  v.  Cape- 
hart,  5  Jones  Eq.  242  ;  and  an  assent  to  a 
legacy  for  life,  is  effectual  as  to  the  subse- 
quent interest  bequeathed  by  the  will : 
Conner  v.  Satchwell,  Admr.,  4  Dev..  & 
Bat.  76 ;  Ingram  v.  Terry  et  al.,  2  Hawk. 
122;  Hearne  v.  Kevan  et  al.,  2  Ired.  Eq. 
34  ;  Acheson  et  al.,  v.  McCombs  et  al.,  3 
Id.  554 ;  Rea  v.  Rhodes,  5  Ired.  Eq.  148  ; 
Jordan  v.  Thornton  et  al.,  7  Geo.  517; 
Lott  V.  Meacham,  4  Fla.  144;  Finch  et  al. 
V.  Rogers,  11  Humph.  563  ;  Judge  of  Pro- 
bate V.  Alexander,  31  Miss.  297  ;  Parker 
V.  Chambers,  24  Geo.  518;  Thrasher  v. 
Ingraham,  32  Ala.  645 ;  Gay  v.  Gay,  29 
Geo.  549. 

The  executor  may  give  his  consent, 
within  the  time  allowed  by  law  for  the 
[layment  of  debts  :  Thomson  v.  Schmidt, 
J  Hill  (S.  C.)  156;  and  after  that  assent, 
a  creditor  of  the  testator,  can  no  longer 
pursue  the  property  in  the  hands  of  the 
kgatee,  through  a  judgment  and  execu- 
tion against  the  executor ;  but  he  rriay 
still  follow  the  specific  legacies,  by  mak- 
ing all  the  legatees  parties  to  a  bill  in 
ciiuity :  Burnley  v.  Lambert,  1  Wash. 
oOL);  Alexanders.  Williams,  2  Hill  (S.C.) 
522;  Lyon  v.  Vick  et  al.,  6  Yerg.  42; 
Nunn  V.  Owens,  2  Strob.  101 ;  Buchanan 
I'.  Pue,  Jr.,  Exr.,  6  Gill  112;  and  where 
an  assent  has  once  been  given,  an  execu- 
tor cannot,  in  general,  follow  the  property 
in  the  hands  of  the  legatee,  even  though 
tliere  should  be  a  deficiency  of  assets  to 
pay  debts,  unless  he  has  taken  a  refund- 
ing bond,  and  even  then,  in  the  case  of  a 
specific  legacy,  he  cannot  recover  the 
thing,  but  merely  the  value :  Ross  v. 
27 


Davis,  17  Ark.  113;  but  it  has  been  held, 
that  where  the  assent  was  given  upon 
condition  that  a  refunding  bond  should 
be  delivered,  and  that  condition  was  not 
complied  with,  the  administrator  might 
recover  from  the  distributee :  Howell  v, 
Johnston,  4  Jones  L.  502. 

Where  an  executor  is  refractory,  and 
refuses  to  confirm  the  title  of  a  legatee,  a 
court  of  equity  will  compel  him  :  Lark  et 
al.  V.  Linstead  et  al.,  2  Md.  Ch.  Decs.  162  ; 
Huckabee,  Admr.,  v.  Swoope,  20  Ala. 
491;  Crist  v.  Crist,  Admr.,  1  Cart.  570; 
Vaughan  v.  Vaughan,  30  Ala.  329. 

The  opinion  of  Judge  Nelson  in  the  case 
of  McClanahan,  Admr.,  v.  Davis  et  al.,  8 
How.  178,  may  be  here  quoted,  as  contain- 
ing a  summary  of  the  law  on  this  subject : 
"  The  legatee,  whether  general  or  specific, 
or  whether  of  chattels  real  or  personal, 
must  first  obtain  the  executor's  assent  to 
the  legacy,  before  his  title  can  become 
perfect.  He  has  no  authority  to  take  pos- 
session of  the  legacy  without  such  assent, 
although  the  testator  by  the  will  expressly 
direct  that  he  shall  do  so.  .  .  .  But 
the  law  has  prescribed  no  particular  form 
by  which  the  assent  of  the  executor  shall 
be  given,  and  it  may  be,  therefore,  either 
express  or  implied.  It  may  be  inferred 
from  indirect  expressions,  or  particular 
acts ;  and  such  constructive  permission 
shall  be  equally  available.  An  assent  to 
the  interest  of  tenant  for  life  of  a  chattel, 
will  inure  to  vest  the  interest  of  the  re- 
mainder, and  e  converso,  as  both  constitute 
but  one  estate.  So  an  assent  to  a  bequest 
of  a  lease  for  years,  carries  with  it  an  as- 
sent to  a  condition  or  contingency  annexed 
to  it;  and  it  may  be  implied,  from  the 
possession  of  the  subject  bequeathed,  by 
the  legatee,  for  any  considerable  length  of 
time." 


329 


OF  PERSONAL  ESTATE  GENERALLY. 


office  during  his  minority :  but  during  this  time  the  administration  of 
the  goods  of  the  deceased  will  be  granted  to  the  guardian  of  the  infant, 
or  to  such  other  person  as  the  Court  of  Probate  may  think  fit.(z)  Such 
person  is  called  an  administrator  durante  minore  cetate.{af  If  a  married 
woman  should  appoint  an  executrix,  she  cannot  accept  the  office  without 
the  consent  of  her  husband,(6)  and  having  accepted  it  with  his  consent, 
she  is  unable,  without  his  concurrence,  to  perform  any  act  of  adminis- 
tration which  may  be  to  his  prejudice  ;  whilst  he,  on  the  other  hand,  may 
release  debts  due  to  the  deceased  or  make  an  assignment  of  the 
deceased's  personal  estate,  without  his  wife's  concurrence  ;(c)  for  as 
the  general  rule  of  law  is  that  a  husband  and  wife  are  but  one 
person,  the  power,  and  with  it  the  responsibility,  are  vested  in  the 
husband.  Nevertheless,  a  married  woman,  being  an  executrix,  may 
make  a  will  without  the  consent  of  her  husband,  confined  to  the  personal 
estate  of  which  she  is  executrix  ',{d)  and  the  executor  of  her  will  so  made 
will  be  the   executor  of  the  original  testator.     For  it  is  a  general  rule, 


(2)  Stat.  38  Geo.  III.  c.  87,  s.  6. 

(a)  Williams  on  Executors,  pt.  1,  bk.  5,  ch.  3,  s.  3. 

{b)  Ibid.  pt.  1,  bk.  3,  ch.  1. 

(c)  Ibid.  pt.  3,  bk.  1,  ch.  4;  5  Rep.  27  b. 

[d)  Ibid.  pt.  1,  bk.  2,  ch.  1,  s.  2. 


1  By  the  23d  section  of  an  act  of  the 
legislature  of  Pennsylvania,  of  the  15th 
of  March,  1832,  it  is  enacted,  that 
"Whenever  all  the  executors  named  in 
any  last  will  and  testament,  or  all  the 
persons  entitled,  as  kindred,  to  the  admin- 
istration of  any  decedent's  estate,  shall 
happen  to  be  under  the  age  of  twenty-one 
years,  it  shall  be  lawful  for  the  register  to 
grant  administration  ....  to  any  other  fit 
person  or  persons,  suVjject  nevertheless  to 
be  terminated,  at  the  instance  of  any  of 
the  said  minors,  who  shall  have  arrived 
at  the  full  age  of  twenty-one  years." 
Purd.  Dig.  (1861),  p.  277,  sec.  29. 

A  similar  provision  is  in  force  in  Massa- 
chusetts :  "  When  a  person  appointed  exe- 
cutor is  under  the  age  of  twenty-one 
years,  at  the  time  of  proving  the  will, 
administration  may  be  granted  with  the 
will  annexed,  during  his  minority,  unless 
there  be  another  executor  who  shall  ac- 
cept the  trust,  in  which  case,  the  estate 
shall  be  administered  by  such  other  exe- 
cutor, until  the  minor  shall  arrive  at  full 


age,  when  he  may  be  admitted  as  joint 
executor  with  the  former,  upon  giving 
bond  as  before  provided."  Gen.  Stats,  of 
Mass.  (1860),  p.  482,  sec.  7. 

In  the  State  of  New  York  it  is  provided, 
that  "  If  any  person,  who  would  otherwise 
be  entitled  to  letters  of  administration,  as 
next  of  kin,  or  to  letters  of  administration 
with  the  will  annexed,  as  residuary  or 
specific  legatee,  shall  be  a  minor,  such 
letters  shall  be  granted  to  his  guardian, 
being  in  all  respects  competent,  in  prefer- 
ence to  creditors  or  other  persons."  Rev. 
Stats,  of  N.  Y.  (5th  ed.),  vol.  iii.  p.  160, 
sec.  33. 

And  see  also,  Gen.  Stats.  N.  H.  (1867), 
p.  361,  sec.  3  ;  Thomps.  Dig.  of  the  Laws 
of  Fla.,  p.  195,  sec.  2;  Rev.  Stats,  of  Vt. 
(1839),  pp.  260,  261,  sec.  6  ;  Rev.  Stats,  of 
Me.  (1857),  pp.  411,  412,  sec.  15;  Laws  of 
Del.,  Rev.  Code  of  1852,  p.  297,  sec.  7;  1  • 
Rev.  Stats,  of  Ohio  (1860),  p.  568,  sec.  8  ; 
Stats,  of  Min.,  p.  432,  sec.  6  ;  Gen.  Stats, 
of  Kansas,  p.  431,  sec.  8.  And  see  Watson  v. 
Warnock,  3  Geo.  694. 


OF  A  WILL. 


329 


that  if  an  executor  should  die  before  having  completely  administered  the 
estate  of  his  testator,  the  executor  appointed  by  the  will  of  such  execu- 
tor will  be  entitled  to  complete  the  distribution  of  the  estate  of  the 
former  testator. (e)^ 

*The  testator  however  may,  and  usually  does,  appoint  more  r^ggQ-i 
than  one  person  his  executors.  In  this  case  the  law  regards  all 
the  co-executors  as  one  individual  person  ;  and  consequently  any  one  of 
the  executors  of  full  age  may,  during  the  life  of  his  companions,  perform, 
without  their  concurrence  all  the  ordinary  acts  of  administration,  such 
as  giving  receipts,  making  payments,  and  selling  and  assigning  the  pro- 
perty.(/)     But  all  the  executors,  infants  included,  must  join  in  bringing 

(e)  Bla.  Com.  506.     And  it  seems  that  he  is  bound  to  do  so  :  Brooks  v.  Haynes,  Law- 
Rep.  6  Eq.  25,  M.  R. 
(/)  Shep.  Touch.  484. 


1  The     statute     law      in     the     United 
States,  generally,  is,   that  an   executor  of 
an  executor,  cannot  be  the  executor  of  the 
first  testator.     Thus,  in  New  York,  "No 
executor  of  an  executor,  shall,  as  such,  be 
authorized  to  administer  on  the  estate  of 
the  first  testator  ;  but,  on  the  death  of  the 
sole  or  surviving  executor  of  any  last  will, 
letters    of  administration,   with    the    will 
annexed,  of  the  assets  of  the  first  testator 
left  unadministered,  shall   be  issued,"  &c. 
Rev.   Stats,  of  N.  Y.  (5th   ed.),  vol.  iii.,  p. 
156,    sec.    17.     In    Massachusetts,    "  The 
executor  of  an  executor  shall  not,  as  such, 
administer  the  estate  of  the  first  testator," 
Rev.  Stats,  of  Mass.  (1860),  p.  482,  sec.  9. 
In  Pennsylvania,  "  Whenever  a  sole   exe- 
cutor, or  the  survivor  of  several  executors 
shall  die,   leaving  goods   or   estate  of  his 
testator  unadministerfid,  the  register  having 
.  jurisdiction,  shall  notwithstanding  such  ex- 
ecutor may  have  made  his  last  will  and  testa- 
ment, and  appointed  an  executor  or  execu- 
tors thereof,  grant  letters  of  administration 
of  all  such  goods  and  estate,  in  the  same 
manner  as  if  such  executor  had  died  without 
having  made  any  testament  or  last  will ;  and 
the  executor  of  such  deceased  executor  shall 
in  no  case  be  deemed  executor  of  the  first 
testator."    Purd.  Dig.  (1861),  p.  275, sec.  16. 


And  see  2  Matthews's  Dig.  (1857),  p.  558, 
sec.  8  ;  Rev.  Stats,  of  Vt.  (1839),  p.  262, 
sec.  12  ;  Laws  of  Del.,  Rev.  Code  of  1852, 
p.  297,  sec  10  ;  2  Compil.  Laws  of  Michigan 
p.  874,  sec.  12  ;  Rev.  Stats,  of  Maine  (1857), 
p.  412,  sec.  18;  1  Rev.  Stats,  of  Ohio 
(1860),  p.  568,  sec.  10  ;  2  Rev.  Stats,  of  Ky. 
(1860),  p.  499,  sec.  11;  Nix.  Dig.  N.J. 
(1868),  p.  309,  sec.  38;  Gen.  Stats.  N.  H. 
(1867),  p.  361,  sec.  8;  Gen.  Stats,  of 
Kansas,  p.  432,  sec.  10. 

But  in  South  Carolina  it  has  been  en- 
acted that  "  executors  of  executors  shall 
have  actions  of  debt,  account,  and  of 
goods  carried  away,  of  the  first  testator, 
and  execution  of  judgments  obtained  by, 
or  recognisances  made  to  the  first  testator, 
in  any  court  of  record,  in  tlie  same  man- 
ner as  the  first  testator  should  have  had  if 
he  were  in  life,  as  well  of  actions  of  the 
time  past,  as  of  the  time  to  come  ;  and  the 
same  executors  of  executors,  shall  answer 
to  others,  of  as  much  as  they  have  re- 
covered of  the  goods  of  the  first  testator, 
as  the  first  executors  should  do  if  they 
were  in  life  :"  Rev.  Stats,  of  S.  C,  vol.  ii., 
p.  439.  And  similar  provisions  are  in 
force  in  North  Carolina  :  Code  of  N.  C. 
(1855),  p.  290,  sees.  42  and  43. 


330 


OF    PERSONAL    ESTATE    GENERALLY. 


actions  respecting  the  estate. (</)  If,  therefore,  the  testator  appoint  a 
person  indebted  to  him  as  his  executor,  or  one  of  his  executors,  this  ap- 
pointment will  operate  at  law  as  a  release  of  the  debt.(Ay  For  the  debt 
is  a  chose  in  action,  and  a  man  cannot  either  solely  or  conjointly  with 
others  bring  an  action  against  himself.  In  equity,  however,  an  executor 
who  was  indebted  to  the  testator  is  bound  to  account  for  his  debt  to  the 
estate  of  the  testator. (e)  On  the  decease  of  any  co-executor,  the  office 
survives  to  those  who  remain  ;  and  until  recently,  if  one  of  them  should 
have  renounced  the  executorship  in  the  lifetime  of  his  companions,  he 

(g)  "Williams  on  Executors,  pt.  2,  bk.  1.  ch.  2.  An  ejectment  was  an  exception,  as 
any  one  executor  might  demise  the  entirety  of  the  testator's  leasehold  land.  Doe  d. 
Stace  V.  Wheeler,  15  M.  &  W.  623.     But  see  now  stat.  15  &  16  Vict.  c.  T6,  ss.  168  et  seq. 

(h)  Wentworth's  Executors  13,  14th  ed. ;   Freakley  v.  Fox,  9  B.  &  C.  130  (E.  C.  L.  R. 

vol.  17). 

(i)  Bac.  Ab.  tit.  Executors  and  Administrators  (A),  10;   Simmons  w.  Gutteridge,  13 

Ves.  264. 


1  The  statutes  of  many  of  the  States  of 
the  Union,  establish  a  rule  contrary  to 
that  stated  in  the  text.  Thus,  by  the  laws 
of  Florida,  "  If  any  person  shall  appoint 
his  or  her  debtor  to  be  the  executor  of  his 
or  her  last  will  and  testament,  such  ap- 
pointment shall  not,  either  in  law  or 
equity,  be  construed  to  operate  as  a  re- 
lease or  extinguishment,  of  any  debt  due 
to  the  testator,  unless  the  same  be  so  ex- 
pressly declared  in  said  last  will  and 
testament."  Thomps.  Dig.  of  the  Laws  of 
Fla.,  p.  196,  sec.  1,  ch.  7.  And  so,  also,  in 
Texas,  "The  naming  an  executor,  shall 
not  operate  to  extinguish  any  just  claim 
which  the  deceased  had  against  him  ;  and 
in  all  cases,  when  an  executor  or  adminis- 
trator may  be  indebted  to  his  testator  or 
intestate,  he  shall  account  for  the  debt  in 
the  same  manner  as  if  it  were  so  much 
money  in  his  hands  :  provided,  however, 
that  if  said  debt  was  not  due  at  the  time 
of  receiving  letters,  he  shall  only  be  re- 
quired to  account  for  it,  from  the  date 
when  it  shall  become  due."  Paschal's 
Dig.  Laws  of  Texas,  p.  325,  Art.  1336.  See 
also  New  Dig.  of  the  Laws  of  Geo.,  by  T.  B. 
R.  Cobb  (1851),  vol.  i.,  pp.  302,  303,  sec. 
51 ;  Rev.  Code  of  N.  C.  (1855),  p.  288,  sec. 
31  ;  2  Rev.  Stats,  of  Ky.  (1860),  p.  499,  sec. 
10;  2  Matthews's  Dig.  Va.  (1857),  p.  561, 
sec.  13  ;   Nixon's  Dig.  N.  J.  (1868),  p.  307, 


sec.  24  ;  Gen.  Stats,  of  Kansas,  p,  444,  sec 
65;  Gross's  Stats.  111.  (1869),  p.  800,  sec 
15  ;  Stats,  of  S.  C,  vol.  v.,  p.  Ill,  sec.  25 
Laws  of  Del.,  Rev.  Code  of  1852,  p.  301,  sec 
18  ;  Dig.  of  Stats,  of  Ark.,  p.  125,  sec.  82 
1  Rev.  Stats,  of  Ohio  (1860),  p.  578,  sec 
65;  How.  &  Hutch.  Stats.  Laws  of  Miss.,  p 
404,  sec.  67. 

By  the  2d  section  of  an  act  of  the  legis- 
lature of  Pennsylvania,  of  the  3d  of  April, 
1829,  it  is  provided,  that  "  In  all  cases 
where  a  creditor  hath  appointed,  or  shall 
appoint,  his  judgment  debtor  his  executor, 
and  the  said  judgment  is  a  lien  on  the 
real  estate  of  such  executor,  and  the  same 
is  bequeathed  specifically  to  a  legatee,  or 
generally  in  the  residuary  clause  of  such 
testator's  will,  or  where  any  testator  hav- 
ing a  judgment  situated  as  aforesaid,  shall 
have  creditors  interested  in  preserving  the 
lien  of  such  judgment,  such  legatee  or 
creditor  so  interested  in  such  judgment, 
may  suggest  their  interest  in  the  same 
upon  the  record  thereof,  and  issue  a  writ 
of  scire  facias  against  the  defendant,  to 
revive  the  same,  and  continue  the  lien 
thereof  at  any  time  when  such  proceedings 
shall  be  necessary  under  the  laws  of  this 
commonwealth,  which  judgment  so  re- 
vived, shall  remain  for  the  use  of  all  per- 
sons interested  therein."  Purd.  Dig. 
(1861),  p.  285,  sec.  84. 


OF   A   WILL.  330 

might  at  any  time  have  changed  his  mind  and  undertaken  the  office.  But 
if  having  survived  all  his  companions,  he  should  then  have  renounced,(y) 
or  if,  without  renunciation,  administration  should  have  been  granted  to 
another  person,(A;)  he  could  not  afterwards  have  interfered.  It  *is  r:}:qqi  -i 
however  now  provided  by  the  Court  of  Probate  Act,  1857,  that 
where  any  person  after  the  commencement  of  that  act,(/)  (which  was 
fixed  by  Order  in  Council  for  the  11th  of  January,  1858),  renounces 
probate  of  the  will  of  which  he  is  appointed  executor  or  one  of  the  ex- 
ecutors, the  rights  of  such  person  in  respect  of  the  executorship  shall 
wholly  cease ;  and  the  representation  to  the  testator  and  the  administra- 
tion of  his  effects  shall,  without  any  further  renunciation,  go,  devolve 
and  be  committed  in  like  manner,  as  if  such  person  had  not  been  appointed 
executor. (m)  And  by  a  subsequent  act  the  same  effect  is  produced 
whenever  an  executor  named  in  a  will  survives  the  testator,  but  dies 
without  having  taken  probate,  and  whenever  an  executor  named  in  a  will 
is  cited  to  take  probate  and  does  not  appear  to  such  citation. (w)  When 
two  or  more  executors  prove,  the  executor  of  the  will  of  the  survivor  of 
them  will,  after  the  decease  of  all  of  them,  be  entitled  to  act  as  executor 
of  their  testator.^ 

If  any  person  not  duly  authorized  should  intermeddle  with  the  goods 
of  the  testator,  or  do  any  other  act  relating  to  the  office  of  executor,  he 
thereby  becomes  an  executor  of  his  own  wrong,  or,  as  it  is  called  in  law 
French,  an  executor  de  son  toi't.  '  Such  an  executor  is  liable  to  the  same 
demands  from  the  creditors  of  the  deceased  as  if  he  had  been  regularly 
appointed  ;  but  like  a  regular  executor  he  is  not  liable  beyond  the  amount 
of  the  assets  of  the  testator  v»hich  have  come  to  his  hands.  The  chief 
difference  between  such  an  executor  and  one  who  has  been  duly  appointed 
is  this,  that  an  executor  de  son  tort  is  not  allowed  to  derive  any  benefit 
from  his  own  wrongful  intermeddling ;  whereas  a  regularly  appointed 
executor,  if  a  creditor  of  the  deceased,  may  ^lawfully  retain  his  t^ooq-i 
own  debt  out  of  the  assets  in  preference  to  all  other  debts  of  the 
same  degree,  (o) 

[j)  Hensloe's  Case,  9  Rep.  3G  ;  Cresswick  v.  Woodbead,  4  M.  &  G.  811  (E.  C.  L.  R. 
vol.  43). 

[k)  Venables  v.  East  India  Company,  2  Ex.  Rep.  633. 

(Z)  In  the  goods  of  Witham,  Law  Rep.,  1  P.  &  D.  303. 

{vi)  Stat.  20  &  21  Vict.  c.  77,  s.  79. 

(n)  Court  of  Probate  Act,  1858,  21  &  22  Vict.  c.  95,  s.  16. 

(o)  Williams  on  Executors,  pt.  1,  bk.  3,  ch.  5;  pt.  3,  bk.  2,ch.  2,  s.  6. 

1  See  ante^  p.  329,  note. 


332 


OF    PERSONAL    ESTATE   GENERALLY. 


The  most  striking  difference  between  a  will  of  personal  estate  and  a 
will  of  lands  yet  remains  to  be  noticed.  A  will  of  lands  has  always 
operated  and  still  operates  as  a  mode  of  conveyance  requiring  no  ex- 
trinsic sanction  to  render  it  available  as  a  document  of  title.  But  a 
will  of  personal  estate  has  always  required  to  be  proved.  This  pro- 
bate of  the  will  was  until  recently  required  to  be  made  in  some 
ecclesiastical  court.  But  by  the  Court  of  Probate  Act,  1857,(p)  the 
jurisdiction  of  all  the  ecclesiastical  courts  over  wills  was  entirely  abol- 
ished, and  a  Court  was  established  called  the  Court  of  Probate,  with  a 
principal  registry  in  London  and  district  registries  throughout  the  king- 
dom, in  which  all  wills  of  personal  estate  are  now  required  to  be  proved. 
In  this  court  the  will  itself  is  deposited,  and  a  copy  of  the  will,  which  is 
given  by  the  court  to  the  executor  on  proving,  denominated  the  probate 
copy,  is  the  only  proper  evidence  of  the  right  of  the  executor  to  inter- 
meddle with  the  personal   estate  of  his  testator  •,[qy     Before  probate, 


(p)  Stat.  20  &  21  Vict.  c.  11,  amended  by  stat.  21  &  22  Vict.  c.  95. 
(g)  Rex  V.  Netherseal,  4  Term  Rep.  260;  "Wms.  Ex.  pt.  1,  bk.  4,  ch.  1. 


1  For  the  regulations  adopted  by  the 
several  States  of  the  Union,  on  the  sub- 
ject of  the  probate  of  wills,  see  the  stat- 
utes of  the  respective  States. 

As  to  the  operation  and  effect  of  the 
probate  of  awill,  a  distinction  is  to  be  made 
between  personal  and  real  property.  The 
probate  of  a  will  of  personalty,  is  conclu- 
sive evidence,  while  it  remains  unrevoked, 
throughout  the  Union,  as  will  be  seen 
by  the  following  cases.  But  as  regards 
realty,  the  decisions  are  not  uniform  ;  some 
holding,  that  the  probate  is  of  equal  effect 
with  that  of  personal  property,  while 
others  support  the  English,  or  common 
law  doctrine  ;  the  former  is  acknowledged 
as  the  law  of  Rhode  Island,  Alabama, 
Maine,  Massachusetts,  New  Hampshire, 
Connecticut,  Ohio,  California  and  Ken- 
tucky: Potter  V.  Webb  et  al.,  2  Greenlf. 
257  ;  Small  et  al.  v.  Small,  4  Id.  224  ;  Os- 
good V.  Breed,  12  Mass.  533  ;  Inhabitants 
of  Dublin  v.  Chadbourne,  16  Id.  433 ; 
Laughton  v.  Atkins,  1  Pick.  549 ;  Tompr 
kins  V.  Tompkins,  1  Story  547  ;  Poplin  v. 
Hawke,  8  N.  H.  124  ;  Judson  v.  Lake,  3 
Day  318;  Bush  v.  Sheldon,  1  Id.  170; 
Bailey  v.  Bailey  et  al.,  8  Ohio  246  ;  Tarver 
V.  Tarver  et  al.,   1  Peters  180  ;  Patton  v. 


Tallman,  27  Maine  17  ;  Singleton  v.  Sin- 
gleton et  al.,  8  B.  Mon.  348  ;  Adams  v. 
DiCook,  1  McAll.  C.  C.  253  ;  and  the  lat- 
ter principle,  is  received  in  New  York, 
Maryland  and  South  Carolina :  Jackson 
V.  Thompson,  6  Cowen  178 ;  Rogers  v. 
Rogers,  3  Wend.  514  ;  Smith's  Lessee  v. 
Steele,  1  Har.  &  McHen.  419  ;  Darby  v. 
Mayer  et  al.,  10  Wheat.  465 ;  Exrs.  of 
Crossland  v.  Murdock,  4  McCord  217  ; 
Warford  v.  Colvin,  14  Md.  532  ;  Tygart  v. 
Peoples,  9  Rich.  Eq.  46. 

In  Pennsylvania,  by  the  seventh  section 
of  the  act  of  22d  of  April,  1856,  Purd. 
Dig.  (1861),  p.  275,  sec.  13,  "The  pro- 
bate, by  the  register  of  the  proper  county, 
of  any  will  devising  real  estate,  shall  be 
conclusive,  as  to  such  realty,  unless 
within  five  years  from  the  date  of  such 
probate,  those  interested  to  controvert  it, 
shall,  by  caveat  and  action  at  law  duly 
pursued,  contest  the  validity  of  such  will 
as  to  such  realty ;"  and  until  concluded 
by  lapse  of  lime,  as  above  specified,  the 
probate  is  only  prima  facie  evidence  in  re- 
gard to  real  estate  :  Shinn  v.  Holmes,  25 
Penn.  St.  142  ;  Baker  v.  McFerran,  26  Id. 
211;  Coates  v.  Hughes,  3  Binn.  498; 
Smith  V.  Bonsall,  5  Rawle  83  ;  Walmsley 


OF   A    WILL. 


332 


however,  the  executor  may  perform  all  the  ordinary  acts  of  administration, 
such  as  receiving  and  giving  receipts  for  debts  due  to  the  testator,  payino- 
the  debts  owing  by  the  testator,  and  selling  and  assigning  any  part  of  the 
personal  estate.  But  when  evidence  is  required  of  his  right  to  intermeddle, 
the  probate  is  the  only  valid  proof ;  without  it,  therefore,  no  action  or 
suit  can  be  maintained,  although  proceedings  may  be  commenced  before, 
and  carried  up  to  the  point  where  the  evidence  is  required. (?-)^ 


*The  jui'isdiction  of  the  ecclesiastical  courts  over  wills  of 
personal  estate  is  of  a  very  ancient  origin.     The  probate  of  wills 


[*333] 


(r)  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  1,  s.  2  ;  Stuart  y.  Burrowes,  1  Drury  265, 

274. 


V.  Read  et  al.,  1  Yeates  87  ;  Spangle  v. 
Rambler,  4  S.  &  R.  192  ;  Logan  v.  Watt 
et  al.,  5  Id.  212  ;  Rowland  v.  Evans,  6 
Penn.  St.  435  ;  Thompson  v.  Thompson,  9 
Id.  234  ;  Dormink  et  al.  v.  Reichenback, 
10  S.  &  R.  89.  In  North  Carolina,  and 
Tennessee  also,  the  probate  is  regarded  as 
prima  facie  proof  as  to  real  estate  :  Stan- 
ley V.  Kean,  1  Tayl.  93  ;  Weatherhead  v. 
Sewell  et  al.,  9  Humph.  282  ;  and  in 
Louisiana  it  has  been  held,  that  it  is  at 
least  primd  facie  evidence,  if  not  conclu- 
sive :  Donaldson  v.  Winter,  1  La.  144. 

In  the  State  of  Virginia,  Judge  Green, 
in  the  case  of  Bagwell  et  al.  v.  Elliott,  2 
Rand.  200,  decided,  that  it  was  not  "  neces- 
sary tliat  a  will  should  be  proved  in  a 
court  of  probate,  in  order  to  give  it 
validity,  as  a  will  of  lands.  The  only 
effect  of  such  probate  is,  to  afford  one 
mode  of  proof  that  the  will  is  genuine 
and  authentic  ;  but  the  mode  of  proof  al- 
lowable, before  the  passing  of  those  stat- 
utes, is  not  abolished  or  prohibited  by 
them  ;  that  is,  by  evidence  on  the  trial. 
If  a  will  offered  for  probate,  were  con- 
tested, and  rejected,  this  might.be  used 
thereafter,  as  the  decision  of  a  competent 
judicial  tribunal,  and  would  condemn  it 
forever."  And  see,  Parker's  Exrs.  v. 
Brown's  Exrs.  et  al.,  6  Graft.  554. 

1  In  some  of  the  States  this  power  has 
been  controlled  by  statute  ;  thus,  in  Ohio, 
"No  executor  named  in  a  will,  shall, 
before  letters   testamentary   are   granted, 


have  any  power  to  dispose  of  any  part  of 
the  estate  of  the  testator,  except  to  pay 
funeral  charges,  nor  to  interfere  in  any 
manner,  with  such  estate,  further  than  is 
necessary  for  its  preservation."  Rev. 
Stats,  of  Ohio  (1860),  p.  568,  sec.  11. 
And   so  also,  in  Virginia  and  New  York  : 

2  Matthews's  Dig.  Va.  (1857),  p.  552,  ^  1  ;' 

3  Rev.  Stats,  of  N.  Y.  (5th  ed.),  p.  156, 
§  16;  and  see  alsoMd.  Code  (1860),  p.  627, 
sec.  48  ;  1  Rev.  Stats,  of  Ky.  (1860),  p. 
497,  sec.  1  ;.  Gen.  Stats,  of  Kansas  (1868), 
ch.  37,  p.  432,  sec.  11. 

In  Alabama,  it  has  been  decided,  that 
executors  are  not  entitled  to  exercise  any 
powers,  as  such,  other  than  collecting 
and  taking  care  of  the  estate,  until  they 
have  given  bond,  and  taken  the  oath  pre- 
scribed :  Cleveland  et  al.,  Exrs.,  v.  Chand- 
ler, 3  Stew.  489  ;  nor  will  their  assent  to 
a  legacy,  before  probate,  give  any  title  to 
the  legatee  :  Gardner  et  al.  v.  Gault  et  al., 
19  Ala.  666.  In  Vermont,  an  executor 
has  no  authority  under  a  will,  until  the 
same  is  approved  or  allowed  by  the  judge 
of  probate  :  Tucker,  Exr.,  v.  Starkes  et  al., 
Brayton  99.  And  see  Trasks  v.  Donoghue, 
1  Aik.  370  ;  Thomas  et  al.,  Exrs.,  v.  Came- 
ron, 16  Wend.  579.  But  in  New  Hamp- 
shire, it  has  been  held,  that  an  executor 
derives  his  authority  from  the  testator, 
and  may  commence  an  action,  as  such, 
before  probate  of  the  will :  Strong,  Exrx., 
V.  Perkins,  3  N.  H.  517  ;  and  see  Bow- 
man's Ap.,  62  Penn.  St.  166. 


333  OF    PERSONAL    ESTATE    GENERALLY. 

of  pervSonalty,  as  a  moans  of  tlioir  authentication,  appears  to  have  been 
in  use  from  the  very  earliest  times.  The  first  persons  by  whom  probate 
was  granted  were  said  to  be  the  lords  of  manors ;  and  some  vestiges  of 
this  ancient  richt  lonir  remained  in  the  case  of  one  or  two  manors,  the 
lords  of  which  retained  such  a  jurisdiction(6')  until  abolislied  by  the  Court 
of  Probate  Act,  1857. (i)  But  so  early  as  the  time  of  Glanville,  who 
wrote  in  the  reign  of  Henry  II.,  the  ecclesiastical  courts  had  acquired 
an  exclusive  right  to  determine  on  the  validity  of  a  will  or  the  bequest  of 
a  legacy.(w)  And  from  this  period  the  right  of  the  church  to  interfere 
in  testamentary  matters  became  gradually  settled,  though  not  without 
much  opposition  on  the  part  of  the  temporal  lords. 

A  will  was  required  to  be  proved  in  the  court  of  the  bishop  or  ordinary 
in  whose  diocese  the  testator  dwelt,  and  within  whose  jurisdiction  the 
personal  effects  of  the  testator  consequently  lay.  But  if  there  were 
effects  to  the  value  of  5/.,  called  hona  notahilia^  in  two  distinct  dioceses  or 
jurisdictions  within  the  same  province,  either  of  Canterbury  or  York,  the 
will  was  required  to  be  proved  in  the  Prerogative  Court  of  the  arch- 
bishop of  that  province.(2;)  If  there  were  personal  effects  within  two 
'provinces,  the  will  must  have  been  proved  in  each  province,  either  in  the 
Prerogative  Court,  or  in  some  court  of  inferior  jurisdiction ;  observing, 
as  to  each  province,  the  same  rule  as  would  have  applied  had  the  testator 
r*^^41  *^^^  ^^  property  clsewhere.(^)  If  probate  were  granted  by  a 
bishop,  or  other  inferior  judge,  in  a  case  where  the  deceased  had 
goods  to  the  value  of  bl.  in  any  other  diocese  in  the  same  province,  such 
probate  was  absolutely  void ;  but  probate  granted  by  an  archbishop,  in  a 
case  where  the  deceased  had  not  bo7ia  notahilia  in  divei'S  dioceses,  was 
voidable  only,  and  not  absolutely  void. (2)  But  the  Court  of  Probate 
Act,  1857,  now  renders  valid  all  grants  of  probates  which  were  void  or 
voidable  by  reason  only  that  the  courts  from  which  they  were  obtained 
had  not  jurisdiction  to  make  such  grants,  except  where  the  same  had 
been  already  litigated.(a)     And  any  will  may  now  be  proved  in  the  prin- 

(*)  Wentworth's  Ex.,  14th  ed.  99,  100 ;  Toller's  Executors  50. 

{t)  Stat.  20  &  21  Vict.  c.  77,  s.  3. 

(m)  Glanville,  lib.  7,  cc.  6,  7  ;  1  Reeves's  Hist.  Eng.  Law  72. 

(x)  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  2.  For  an  account  of  the  rise  of  the 
archbishop's  jurisdiction,  see  Gent.  Mag.  new  series,  vol.  12,  p.  582. 

(y)  Second  Report  of  Real  Property  Commissioners  67. 

(z)  Wentworth's  Executors  110,  14th  ed. ;  Lysons  v.  Barrow,  2  Ring.  N.  C.  486  (E. 
C.  L.  R.  vol.  29). 

(a)  Stat.  20  &  21  Vict.  c.  77,  s.  80  ;  In  the  goods  of  Tucker,  2  Sw.  &  Trist.  123 ;  9  W. 
R.  420. 


OF    A   WILL.  334 

cipal  registry  of  the  Court  of  Probate  without  regard  to  the  abode  of 
the  testator.(5)  But  if  the  testator  had,  at  the  time  of  his  death,  a  fixed 
place  of  abode  within  any  district,  his  will  may  be  proved  in  the  registry 
of  that  district  ;{c)  and  the  grant  so  made  will  be  effectual  even  if  the 
testator  should  not  have  had  any  fixed  place  of  abode  within  that 
district. (cZ) 

The  evidence  required  for  the  proof  of  a  will  varies  according  to  the 
form  of  the  attestation,  and  also  according  to  the  circumstance  of  the 
validity  of  the  will  being  or  not  being  disputed.  The  usual  and  proper 
form  of  attestation  to  a  will  expresses  that  the  formalities  required  by 
the  Wills  Act(e)  have  been  complied  with ;  thus,  "  Signed  and  declared 
by  the  above-named  A.  B.,  the  testator,  as  and  for  his  last  will  and  tes- 
tament, in  the  presence  of  us,  both  present  at  the  same  time,  who,  at  his 
request,  in  his  presence,  and  in  the  *presence  of  each  other,  r^ggg-i 
have  hereunto  subscribed  our  names  as  witnesses."  When  the 
attestation  is  in  this  form,  and  the  validity  of  the  will  is  not  disputed,  it 
is  proved  by  the  simple  oath  of  the  executor,  that  he  believes  the  will  to 
be  the  true  last  will  and  testament  of  the  deceased.  But  as  such  a  form 
of  the  attestation  clause  is  not  essential  to  the  validity  of  the  will,(/) 
wills  are  sometimes  informally  made  without  any  clause  of  attestation,  or 
with  a  clause  which  does  not  express  that  the  required  formalities  have 
been  complied  with.  When  this  occurs,  an  affidavit,  in  addition  to  the 
executor's  oath,  is  required  from  one  of  the  subscribing  witnesses,  that 
the  will  was  executed  in  compliance  with  the  statute.(^)  Probate  in 
either  of  the  above  modes  is  termed  probate  in  common  form.  But  if 
the  validity  of  the  will  should  be  disputed,  or  any  dispute  should  be 
anticipated  by  the  executor,  the  will  is  proved  in  solemn  form  per  testes. 
In  this  case  both  the  witnesses  are  sworn  and  examined,  and  such  other 
evidence  taken  as  the  circumstances  require,  in  the  presence  of  the  widow 
and  next  of  kin  of  the  testator,  and  all  others  pretending  to  have  any 
interest,  who  are  cited  to  be  present  to  see  the  proceedings.  When  a 
will  has  once  been  proved  in  this  form  it  is  finally  established,  and  the 
executor  cannot  be  compelled  to  prove  it  any  more ;  but  when  a  will  has 
been  proved  merely  in  common  form,  the  executor  may,  at  any  time 

(b)  Stat.  20  &  21  Vict,  c.  77,  s.  59.  (c)  Sect.  46. 

{d)  Sect.  47. 

(e)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  9,  ante,  p.  323. 

(/)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  9. 

Iff)  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  3,  s.  3.  The  practice  of  the  Court  of 
Probate  is  generally  the  same  as  the  old  practice  of  the  Prerogative  Court  of  the  Arch- 
bishop of  Canterbury ;  stat.  20  &  21  Vict.  c.  77,  s.  29. 


335  OF    PERSONAL    ESTATE    GENERALLY. 

within  thirty  years,  be  compelled  by  any  party  interested  to  prove  it  per 
testes  in  solemn  form.(/i)  The  contentious  jurisdiction  with  respect  to  the 
grant  and  revocation  of  probates  of  wills,  has  been  transferred  to  the 
|-^qqp-|  county  courts  in  cases  where  *the  personalty  is  under  the  value 
of  200/.,  and  the  deceased  was  not  at  the  time  of  his  death  bene- 
ficially entitled  to  any  real  estate  of  the  value  of  S00l.[{) 

Probate  of  wills  are  required  by  act  of  parliament  to  be  stamped  with 
an  ad  valorem  duty  according  to  the  value  of  the  personal  estate  of  the 
testator(y)  whenever  it  exceeds  lOOL^ky  The  effects  of  the  testator 
within  the  jurisdiction  of  the  spiritual  judge  granting  probate  were 
formerly  alone  valued  for  this  purpose. (Z)  But  it  is  now  provided  that 
probate  shall  be  granted  in  respect  of  the  whole  of  the  personal  and 
movable  estate  and  effects  of  the  deceased  in  the  United  Kingdom. (w) 
And  provisions  have  been  made  for  extending  to  England,  Scotland  and 
Ireland  respectively  probates  granted  by  the  courts  of  probate  which 
have  now  been  established  in  England  and  Ireland,  and  confirma- 
tions, as  they  are  called,  of  executors  in  Scotland.(w)  A  recent  act  of 
parliament  provides  that  all  Indian  government  promissory  notes  and 
certificates  issued  or  stock  created  in  lieu  thereof,  being  assets  of  a  de- 
ceased person,  the  interest  whereon  shall  be  payable  in  London  by  drafts 
payable  in  India,  and  which  at  the  decease  of  the  owner  thereof  shall  have 
been  registered  in  the  books  of  the  secretary  of  etate  in  council  in  London, 
or  in  the  books  of  the  governor  and  company  of  the  Bank  of  England,  or 
shall  have  been  enfaced  in  India  for  the  purpose  of  being  so  registered  be- 
fore the  decease  of  the  owner  thereof,  and  all  India  government  promissory 

(A)  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  3,  s.  4. 

(i)  Stat.  21  &  22  Vict.  c.  95,  s.  10. 

(y)  Stats.  55  Geo.  III.  c.  184;  5  &  6  Vict.  c.  79,  s.  23  ;    22  &  23  Vict.  c.  36,  s.  1. 

(k)  Stat.  27  &  28  Vict.  c.  56,  s.  5. 

(l)  Attorney-General  v.  Hope,  2  CI.  &  Fin.  84  ;  Attorney-General  v.  Bouwens,  4  M. 
&W.  171. 

(m)  Stat.  21  &  22  Vict.  c.  56,  s.  15.  As  to  ships  at  sea,  see  stat.  27  &  28  Vict.  c.  56, 
s.  4. 

(n)  Stat.  20  &  21  Vict.  c.  79,  ss.  94,  95;  21  &  22  Vict.  c.  56,  ss.  12,  13,  14;  21  &  22 
Vict.  c.  95,  s.  29. 

1  By   the   Internal  Revenue   Act,  being  cents,  for  every  one  thousand  dollars  value 

Act  of  Congress  of  June  30,   1864,  it  is  of  the   estate   or   fractional   part   of  one 

provided,  that  upon  the  proof  of  wills,  or  thousand  dollars,  exceeding  two  thousand 

granting  letters   of  administration,   a  tax  dollars.     See    sec.    170,    Schedule   B.,  tit. 

of  one  dollar  shall  be  paid  whenever  the  "  Probate  of  Will,"  2  Brightly's  U.  S.  Dig., 

value  of  the  estate  exceeds  two  thousand  p.  380,  sec.  374. 
dollars,    and   an   additional    tax   of    fifty 


I 


OF   A   WILL.  337 

*notes  issued  with  coupons  attached,  which,  under  such  regula-  r,):qo7n 
tions  and  conditions  as  may  be  determined  from  time  to  time  by 
the  secretary  of  state  in  council,  shall  be  so  registered,  and  all  certificates 
issued  or  stock  created  in  lieu  thereof,  shall  be  deemed  and  taken  to  be 
personal  estate  and  bona  notabilia  of  such  deceased  person  in  England  ; 
and  probate  or  letters  of  administration  in  England,  or  confirmation 
granted  in  Scotland  and  sealed  with  the  seal  of  the  principal  court  of 
probate  in  England,  shall  be  sufiicient  to  constitute  the  persons  therein 
named  the  legal  personal  representatives  of  the  deceased  with  respect  to 
such  notesand  money  as  aforesaid. (o)  Probates  of  wills  operating  merely 
in  exercise  of  powers  of  appointment  over  property  of  which  the  de- 
ceased had  no  ownership,  were  formerly  held  to  be  exempt  from  probate 
duty  in%-espect  of  the  value  of  the  property  appointed.(|?)  But  it  is  now 
provided,  that  probate  duty  shall  be  paid  in  respect  of  all  the  personal 
or  movable  estate  and  effects  which  any  person  dying  after  the  3d  of 
April,  1860,  shall  have  disposed  of  by  will  under  any  authority  enabling 
such  person  to  dispose  of  the  same  as  he  or  she  shall  think  fit.{q)  The 
distribution  of  the  effects  of  officers  and  soldiers  dying  on  service  is  pro- 
vided for  by  the  Regimental  Debts  Act,  1863. (?•)  Exemptions  from  pro- 
bate duty  have  been  made  by  parliament  in  favor  of  the  effects  of  common 
seamen,  marines  and  soldiers,  who  may  be  slain  or  die  in  the  queen's 
service.(s)  And  pay,  wages,  prize  money  or  pensions  due  to  deceased 
naval  officers,  marines,  seamen  and  others  employed  in  *the  r*qqoi 
navy,  whose  whole  assets  shall  not  exceed  thirty-two  pounds,  are 
allowed  to  be  paid  out  without  probate  of  their  wills.(^)  And  the  ex- 
emptions thus  made  have  recently  been  extended  to  all  persons  to  whom 
any  sum  of  money,  not  exceeding  one  hundred  pounds,  may  be  payable 
by  a  public  department  in  respect  of  civil  pay  or  allowances,  or  annuities 
granted  under  authority  of  parliament.(w)  And  in  the  case  of  any  civil 
or  military  allowances  chargeable  to  the  army  votes,  and  of  army  prize 
money,  the  existing  exemptions  are  extended  to  the  sum  of  one  hundred 
pounds.(v)  Probates  of  the  wills  of  petty  officers  and  seamen  in  the 
royal  navy  and  of  marines  and  non-commissioned  officers  of  marines  are 
placed  by  act  of  parliament  under  the  care  of  an  officer  called  the  in- 

(o)  Stat.  23  Vict.  c.  5,  s.  1.    As  to  bonds  and  specialties,  see  stat.  25  Vict.  c.  22,  s.  39. 

(p)  Piatt D.  Routh,  6  M.  &  W.  756  ;  3  Beav.  257  ;  affirmed  in  the  House  of  Lords; 
Drake  v.  Attorney-General,  10  CI.  &  Fin.  257. 

(g)  Stat.  23  Vict.  c.  15,  s.  4. 

(r)  Stat.  26  &  27  Vict.  c.  57  ;  and  see  the  Army  Prize  (shares  of  deceased)  Act,  18G4, 
Stat.  27  &  28  Vict.  c.  26. 

(s)  Stat.  55  Geo.  IIL  c.  184.  (t)  Stat.  4  &  5  Will.  IV.  c.  25,  s.  8. 

(m)  Stat.  31  &  32  Vict.  c.  90,  s.  1.  (v)  Sect.  2. 


338  OF  PERSONAL  ESTATE  GENERALLY. 

spector  of  seamen's  wills,  and  are  subject  to  special  regulations  made  to 
prevent  frauds  on  persons  proverbially  careless  and  liable  to  imposi- 
tion.(.r)  And  with  respect  to  merchant  seamen,  the  Merchant  Shipping 
Act,  1854,  now  provides,  that  if  the  money  and  effects  of  any  such  sea- 
men do  not  exceed  in  value  the  sum  of  50/.,  probate  may  be  dispensed 
with  at  the  discretion  of  the  Board  of  Trade. (?/)  The  probate  duty  is  in 
the  first  place  paid  on  the  whole  value  of  the  personal  estate  of  the  tes- 
tator without  allowing  for  his  debts;  and  after  the  debts  are  paid,  a 
return  of  part  of  the  probate  duty  is  made  according  to  the  value  to 
which  the  estate  may  be  reduced  by  the  payment  of  the  debts.  But 
where  leasehold  estates  are  the  sole  security,  by  way  of  mortgage,  for 
any  debts  due  from  the  deceased,  the  amount  of  such  mortgage  debts  may  be 
P^qqq-i  deducted  from  the  *value  of  the  said  leasehold  estates«(2)  As 
some  persons  attempted  to  evade  probate  duty  by  means  of  vol- 
untary bonds  to  take  effect  at  their  decease,  in  lieu  of  legacies,  it  is  now 
provided  that  no  return  of  probate  duty  shall  be  made  in  respect  of  any 
voluntary  debt  due  from  any  person  dying  after  the  28th  of  June,  1861, 
which  shall  be  expressed  to  be  payable  on  the  death  of  such  person,  or 
payable  under  any  instrument  which  shall  not  have  been  bona  fide  de- 
livered to  the  donee  thereof  three  months  before  the  death  of  such 
person. (a) 

When  the  will  has  been  proved,  it  is  the  duty  of  the  executor  to  pay 
the  testator's  debts  out  of  the  personal  estate,  to  which  such  executor 
becomes  entitled  by  virtue  of  his  ojffice.  For  this  purpose  the  executor 
has  reposed  in  him  by  the  law  the  fullest  powers  of  disposition  over  the 
personal  estate  of  the  deceased,  whatever  may  be  the  manner  in  which  it 
has  been  bequeathed  by  the  will. (6)  And  in  the  event  of  a  sale  of  any 
such  property  by  the  executor,  the  purchaser  is  not  bound  to  inquire 
whether  there  are  any  debts  remaining  unpaid  ;  for,  in  the  absence  of 
evidence  to  the  contrary,  the  executor  is  presumed  to  be  acting  in  the 
proper  discharge  of  his  office.(c)  Nor  is  the  purchaser  at  all  concerned 
with  the  application  which  the  executor  may  make  of  the  purchase- 
money  ;  but  the  executor's  receipt  will  be  a  suflBcient  discharge,  and  he 

(x)  Stat.  11  Geo.  IV.  &  1  Will,  IV.  c.  20,  ss.  55-58,  amended  by  stat.  2  &  3  Will.  IV. 
c.  40,  ss.  12,  13 ;  4  &  5  Will.  IV.  c.  25,  s.  8  ;  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  4  ; 
bk.  5,  ch.  2,  s.  4. 

(y)  Stat.  IT  &  18  Vict.  c.  104,  s.  199.  (z)  Stat.  31  &  32  Vict.  c.  12'7,  s.  7. 

(a)  Stat.  24  &  25  Vict.  c.  92,  s.  3. 

(6)  Ewer  v.  Corbet,  2  P.  Wms.  148  ;  Russell  v.  Plaice,  18  Beav.  21. 

(c)  Nugent  v.  Gifford,  1  Atk.  463 ;  Elliot  v.  Merriman,  2  Id.  42. 


OF   A   WILL.  339 

alone  will  be  responsible  to  the  creditors  and  legatees  for  its  due  appli- 
cation.(t^)  The  order  in  which  debts  ought  to  be  paid  out  of  the  per- 
sonal estate  of  a  deceased  debtor  has  been  *already  noticed  in  r*o4A-i 
the  chapter  on  debts  ;(e)  and  it  has  also  been  stated  that  the 
executor,  if  a  creditor,  is  entitled  to  retain  his  own  debt  in  preference  to 
all  others  of  the  same  degree.  (/) 

When  the  will  has  been  executed  after  the  28th  of  August,  1860,  or 
has  been  confirmed  or  revived  by  a  codicil  executed  after  that  date,  the 
executors  are  empowered  to  pay  any  debts  or  claims  upon  any  evidence 
that  they  may  think  sufficient,  and  to  accept  any  composition,  or  any 
security,  real  or  personal,  for  any  debts  due  to  the  deceased,  and  to  allow 
any  time  for  payment  of  any  such  debts  as  they  shall  think  fit,  and  also 
to  compromise,  compound  or  submit  to  arbitration  all  debts,  accounts, 
claims  and  things  whatsoever  relating  to  the  estate  of  the  deceased,  and 
for  any  of  the  purposes  aforesaid  to  enter  into,  give  and  execute  such 
agreements,  instruments  of  composition,  releases  and  other  things  as 
they  shall  think  expedient,  without  being  responsible  for  any  loss  to  be 
occasioned  thereby. (^)  And  the  executors  are  now  empowered  immedi- 
ately, or  at  any  time  after  probate,  to  apply  to  the  Court  of  Chancery 
for  an  order  to  be  made  upon  motion  or  petition  of  course,  or  by  the 
judge  at  chambers,  referring  it  to  the  chief  clert  of  the  judge  to  take  an 
account  of  the  debts  and  liabilities  affecting  the  personal  estate  of  the 
deceased  and  to  report  thereon  ;  and  after  any  such  order  shall  have 
been  made,  proceedings  at  law  by  the  creditors  against  the  executors 
may  be  restrained  or  suspended  by  the  court  until  the  account  directed 
by  such  order  shall  have  been  taken. (A)  ^ 

(d)  Whale  v.  Booth,  4  Term  Rep.  625,  n.  ;  M'Leod  v.  Drummond,  17  Ves.  154. 

(e)  Atite,  pp.  97,  102,  105,  106.  (/)  ^nte,  pp.  331,  332. 
(g)  Stat.  23  &  24  Vict.  c.  145,  s.  30. 

{h)  Stats.  13  &  14  Vict.  c.  35,  s.  19  ;  23  &  24  Vict.  c.  38,  s.  14. 


1  The  personal  representative  of  a  testa-  unfinished  contract  of  his   testator  or  in- 

tor  or  intestate,  is  bound  to  proceed  in  the  testate  :    Dougherty    v.     Stephenson,    20 

settlement  of  the  estate,  in  such  manner  Penn.   St.   210;  Gray  v.  Hawkins,  8   Ohio 

as  will  promote  the  interests  of  those  enti-  St.   449  ;   or  assign  and   transfer  the    se- 

tled   thereto,  and  to   that   end  may  com-  curities  belonging  to  the   estate  :  Speel- 

promise  claims  :  Chouteau  v.  Suydam,  21  man  v.  Culbertson,  15  Ind.  441 ;  Ladd  v. 

N.  Y.  179;  or  waive  formal  proof  thereof :  Wiggin,  35  N.  H.  421  ;  Thomas  v.  Reister, 

Anderson's    Admr.    v.    Washabaugh,    43  3  Ind.  369  ;  Walker  i'.  Craig,   18   111.  116  ; 

Penn.  St.  115 ;  or  arbitrate  them  :  Peter's  Hough  v.  Bailey,  32  Conn.  288.     As  to  the 

Ap.,  38  Id.  239  ;  Chadbourn  v.  Chadbourn,  obligation  of  an  executor  or  administrator, 

9  Allen  173;  so,  also,  he   may  rescind  an  to  plead   the  statute   of  limitations,  there 


340  OF    PERSONAL    ESTATE    GENERALLY. 

When  the  debts  have  been  paid,  the  legacies  left  by  the  testator  are 
P^q  1-1-1    then  to  be  discharged.    In  order  to  give  *the  executor  sufficient 

time  to  inform  himself  of  the  state  of  the  assets  and  to  pay  the 
debts  of  the  deceased,  he  is  allowed  a  twelvemonth  from  the  date  of  the 
death  of  the  testator  before  he  is  bound  to  pay  any  legacies. (t)  From 
this  time  all  such  general  legacies  as  remain  unpaid  carry  interest,  at  the 
rate  of  four  per  cent,  per  annum. (/)  Notwithstanding  the  lapse  of  a 
year  from  the  testator's  death,  the  executor,  however,  is  still  liable  to  any 
creditor  of  the  deceased  to  the  amount  of  the  assets  which  have  come  to 
the  executor's  hands  ;(A;)  and  if  he  should  have  paid  any  legacies  in  ignor- 
ance of  the  claims  of  the  creditor,  his  only  remedy  is  to  apply  to  the  legatees 
to  refund  their  legacies,  which  they  will  be  bound  to  do,  in  order  to 
satisfy  the  debt.(Z)  From  this  liability  to  creditors,  an  executor  could 
not  until  recently  have  been  discharged,  unless  he  threw  the  property  into 
chancery,  in  which  case  the  court  undertakes  the  administration,  and  the 
executor  is  consequently  exonerated  from  all  risk.(m)  But  a  recent  act 
exonerates  executors  from  all  liability  to  the  rents  and  covenants  of  any 
leasehold  or  other  property  liable  to  rents  or  covenants  after  an  assign- 
ment made  by  him  to  a  purchaser,  provided  he  shall  have  set  apart  a 
sufficient  fund  to  answer  any  future  claim  in  respect  of  any  fixed  and 
ascertained  sum  agreed  by  the  lessee  or  grantee  to  be  laid  out  on  the 
property.(7iy  And  it  is  further  provided,  that  where  an  executor  shall 
have  given  the  like  notices  as  would  have  been  given  by  the  Court  of 
r*^491    Chancery  in  an  administration  suit,  for  creditors  and  *others  to 

send  in  their  claims  against  the  estate  of  the  testator,  the  exe- 

(i)  Ward  v.  Penoyre,  13  Ves.  333;  Benson  v.  Maude,  6  Madd.  15. 

(y  )  Ward  V.  Penoyre,  ubi  sup. 

{k)  Norman  v.  Baldyry,  6  Sim.  621  :  KnatchbuU  v.  Fearnhead,  3  Myl.  &  Cr.  122; 
Hill  V.  Gomme,  1  Beav.  540. 

(l)  March  v.  Russell,  3  Myl.  &  Cr.  31.         (m)  3  Myl.  &  Cr.  126. 

(n)  Stat.  22  &  23  Vict.  c.  35,  ss.  27,  28.  This  act  extends  to  leases  made  before  it 
passed  :  Smith  v.  Smith,  1  Drew.  &  Smale,  684;  Re  Green,  2  De  G.,  F.  &  J.  121. 

seems  to  be  a  diversity  of  sentiment ;  and  deed,  is  personal  on  the  part  of  the  cove- 
although  the  better  opinion  is  that  he  has  nantor,  yet  as  to  arrears  of  rent  accruing 
a  discretion  on  the  subject :  Barnawell  v.  after  his  decease,  the  landlord  is  restricted 
Smith,  5  Jones  Eq.  168  ;  Semmes  v.  Ma-  to  the  realty  out  of  which  it  issues,  and  is 
gruder,  10  Md.  242  ;  Pollard  v.  Sears,  28  not  entitled  to  payment  out  of  money  in 
Ala.  484  ;  Ritter's  Ap.,  23  Penn.  St.  95  ;  the  hands  of  the  executors.  But  the  per- 
Conway  v.  Rayburn,  22  Ark.  290  ;  yet,  sonal  representatives  of  the  covenantor, 
there  is  not  wanting  authority,  that  the  may  be  sued  for  the  breaches  of  the  cove- 
personal  representative  of  a  decedent  is  nant  in  the  ground-rent  deed,  occurring 
without  discretion,  and  must  plead  the  after  his  death,  though  the  judgment  will 
statute  :  Rector  v.  Conway,  20  Ark.  79.  be  restricted  to  the  land  bound  by  the 
1  Though  the  covenant  in  a  ground-rent  covenant :  William's  Ap.,  47  Penn.  St.  283. 


OF   A   WILL. 


342 


cutor  may  distribute  the  assets  amongst  the  parties  entitled,  without 
liability  to  any  person  of  whose  claim  he  shall  not  have  had  notice  at  the 
time  of  distribution. (o)  The  executor  is  of  course  not  answerable  to  the 
testator's  creditors  beyond  the  amount  of  assets  which  have  come  to  his 
hands,(j!?)  unless  he  should  for  sufficient  consideration  give  a  Avritten 
promise  to  pay  person  ally,  (§')  or  should  do  any  act  amounting  to  an 
admission  that  he  has  assets  of  the  testator  sufficient  for  the  payment 
of  the  debts.(r)^ 

(o)  Stat.  22   &   23  Vict.  c.  35,  s.  29;   Clegg  v.  Rowland,  V.-C.  M.,  Law  Rep.  3  Eq. 
368  ;  36  L.  J.,  N.  S.  Chan.  137. 

(p)  Bac.  Abr.  tit.  Executors;  (P),  1. 

(q)  Stat.  29  Car.  IL  c.  3,  s.  4;  ante,  p.  78;  1  Wms.  Saund.  210,  n.  (1)  ;  211,  n.  (2). 

(r)  Horsley  v.  Chaloner,  2  Ves.  sen.  83. 


1  An  executor  or  administrator  can  only 
be  made  answerable  for  the  assets  which 
come  to  his  hands;  Douglass  v.  Satterlee 
et  al.,  Admr.,  11  Johns.  16;  Williams  v. 
Holden,  4  Wend.  229  ;  Call  et  al.,  Exrs.,  v. 
Ewing,  1  Blackf.  301  ;  Moore's  Admrs.  i^. 
Tandy  et  al.,  3  Bibb  97  ;  Byrd  v.  Holloway, 
6  Sm.  &  M.  199;  Loundes,  &c.,  v.  Pinckney 
et  al.,  2  Strobh.  Eq.  44;  Robinson  v.  Lane, 
14  Sm.  &  M.  161  ;  Clayton  v.  Wardell,  2 
Bradf.  1 ;  but  where  he  has  been  in  posses- 
sion of  assets  and  has  handed  them  over 
to  his  co-executor  or  administrator,  or 
other  person,  or  has  in  any  way  connived 
a't  the  possession  of  the  assets  by  his  co- 
executor  or  administrator,  he  will  be  re- 
sponsible for  their  administration:  Douglass 
«^.  Satterlee  et  al.,  Admrs.,  11  Johns.  16; 
Stewart  v.  Conner,  9  Ala.  803  ;  Edmonds 
et  al.  V.  Crenshaw,  14  Peters  166;  Mesick, 
Exr.,  V.  Mesick  et  al.,  7  Barb.  120  ;  Clarke 
V.  Jenkins  et  al.,  3  Rich.  Eq.  319;  Tilton 
V.  Tilton,  41  N.  H.  479  ;  Fisher  v.  Skillman, 
3  Green  229;  and  so  where  he  postpones 
the  collection  of  a  debt  due  the  estate, 
until  it  is  lost:  Shaffer's  Ap.,  10  Penn.  St. 
131 ;  Cason  v.  Cason,  31  Miss.  578 ;  Cooley 
V.  Vausyckle,  1  McCart.  (N.J.)  496. 

A  promise,  however,  made  by  an  exe- 
cutor or  administrator,  in  writing,  to  pay 
the  debt  of  his  testator  or  intestate,  will 
make  him  individually  liable :  Ciples  v. 
Alexander,  2  Constitutional  R.  768  ;  Rob- 
inson V.  Lane,  14  Sm.  &  M.  161  ;  Carter  v. 
Thomas,  3  Cart.  213  ;  provided,  it  be  made 


upon  a  sufficient  consideration  :  Byrd  v. 
Holloway,  6  Sm.  &  M.  199  ;  Mosely  et  al.  v. 
Taylor,  4  Dana  542  ;  Robinson  v.  Lane,  14 
Sm.  &  M.  161 ;  and,  forbearance  is  a 
sufficient  consideration:  Taliaferro  v. 
Robb  et  al.,  Admrs.,  2  Call  217  ;  Mosely  et 
al.  w.  Taylor,  4  Dana  542;  but  a  verbal 
promise,  even  if  upon  a  good  consideration, 
will  not  be  binding,  in  those  states,  where 
the  statute  of  frauds  requires  the  promise 
of  an  executor  to  pay  the  debt  of  his 
testator,  to  be  in  writing,  as  falling  within 
the  provisions  of  that  statute  :  Harrington 
V.  Rich,  6  Vt.  666;  Okeson's  Ap.,  59  Penn. 
St.  99. 

But  where  an  executor  admits  that  he 
has  assets,  or  does  any  act  amounting  to 
such  an  admission,  he  will  make  himself 
individually  responsible  for  the  debts  of 
the  decedent :  Taliaferro  v.  Robb  et  al., 
Exrs.,  2  Call  217  ;  Ten  Eyck  v.  Vanderpoel, 
8  Johns.  120;  Sleighter  v.  Harrington, 
Exrx.,2  Tayl.  249;  Simst;.  Stinwell,3  How. 
(Miss.)  181  ;  Loundes,  &c.,  v.  Pickney  et 
al.,  2  Strobh.  Eq.  44 ;  Irwin's  Ap.,  35 
Penn.  St.  294 ;  Colwell  v.  Alger,  5  Gray  67  ; 
Sample  v.  Lipscomb,  18  Geo.  687;  Ciples 
V.  Alexander,  2  Constitutional  R.  768  ;  in 
which  last  case,  it  was  said  by  Judge  Bay  : 
"  As  there  is  no  privity  of  contract  be- 
tween' the  executor  or  administrator,  and 
a  testator  or  intestate's  creditor,  it  is  not 
presumed  in  law,  that  they  can  know 
whether  a  demand  is  just  or  unjust.  And 
therefore,  a  bare  admission  alone  on  the 


342 


OF    PERSONAL    ESTATE    GENERALLY. 


On  tlie  payment  or  delivery  of  any  legacy  of  the  amount  or  value  of 
20^.  or  upwards,  whether  payable  out  of  the  estate  of  the  testator,  real 
or  personal,  or  out  of  any  real  or  personal  estate  over  which  he  had  a 
power  of  appointment.(s)  a  receipt  must  be  given  by  the  legatee,  which  is 
char'reable  with  a  duty,  called  the  legacy  duty,  on  the  amount  or  value 
of  the  legacy.(f)  But  no  sum  of  money,  which  by  any  marriage  settle- 
ment is  subjected  to  any  limited  power  of  appointment  to  or  for  the 
benefit  of  any  person  or  persons  therein  specially  named  or  described  as 
the  object  or  objeets  of  such  power,  or  to  or  for  the  benefit  of  the  issue 
of  any  such  person  or  persons,  is  liable  to  legacy  duty  under  the  will  in 
which  such  sum  is  appointed  or  apportioned  in  exercise  of  such  limited 
power.(M)  The  amount  of  legacy  duty  varies  according  to  the  degree  of 
relationship  *which  the  legatee  bore  to  the  deceased.^  Where 
'-         -^    the  legacy  is  to  a  child  or  lineal  descendant,  or  to  the  father  or 


(«)  Stat.  8  &  9  Vict.  c.  7G,  s.  4 ;  Attorney-General  v.  Marquis  of  Hertford,  3  Ex.  Rep. 


670. 


(/)  Stat.  3G  Geo.  III.  c.  52,  s.  27. 


part  of  an  executor  or  administrator,  is 
not  sufficient  to  charge  the  estate  with  the 
debt,  although  they  may  admit  they  have 
assets  for  that  purpose,  and  that  will 
charge  them  in  case  of  a  deficiency,  pro- 
vided that  there  is  a  legal  recovery  against 
them." 

"Ap  romissory  note  imports  a  considera- 
tion, and  it  is  unnecessary  to  state  any  in 
pleading,  or  to  prove  any  upon  the  trial, 
in  the  first  instance.  When  such  note  is 
given  by  an  executor  or  administrator,  it 
is  prima  facie  evidence  of  assets,  because 
they  are  the  legal  consideration,  upon 
which  the  promise  ought  to  be,  and  is 
presumed  to  be,  founded  ;  it  is,  however 
hnt  prima  facie  evidence  between  the  orig- 
inal parties,  and  the  defendant  may  show 
that  in  fact  there  was  a  deficiency  of 
assets,  and  of  course  no  consideration  to 
support  the  note  :"  Bank  of  Troy  v.  Toji- 
ping  et  al.,  13  Wend.  557  ;  s.  c,  9  Id.  273. 

1  By  the  124th  section  of  the  Act  of 
Congress  of  the  30th  of  June,  18C4,  as 
amended  by  the  acts  of  the  3d  of  March 
1865,  and  13th  of  July,  1866,  legacies  and 
distributive  shares  of  the  estates  of  de- 
cedents, which  exceed  in  amount  the  sum 
of  one  thousand  dollars,  were  made  liable 


(m)   Stat.  8  &  9  Vict.  c.  76,  s.  4. 

to  a  duty,  or  tax,  to  be  paid  to  the  United 
States,  after  the  following  rate,  to  wit :  To 
a  lineal  ancestor  or  descendant,  or  brother 
or  sister  of  decedent,  one  per  centum  ;  to 
a  descendant  of  a  brother  or  sister  of  the 
decedent,  two  per  centum  ;  to  a  brother 
or  sister  of  the  father  or  mother  of  a  de- 
cedent, or  a  descendant  of  such  brother  or 
sister,  four  per  centum  ;  to  a  brother  or 
sister  of  the  grandfather  or  grandmother 
of  a  decedent,  or  a  descendant  of  such 
brother  or  sister,  five  per  centum  ;  to  any 
other  degree  of  collateral  relationship,  or 
to  a  stranger,  six  per  centum.  The  suc- 
cession of  real  estate,  was  by  the  133d 
section  of  the  same  act,  subjected  to  the 
same  tax,  with  the  exception,  that  the 
brother  or  sister  of  decedent  was  taxed 
two  per  centum,  and  there  was  no  limita- 
tion of  the  tax  as  regards  the  amouut  of 
the  estate.  But  no  duty  was  to  be  paid, 
for  any  legacy  or  distributive  share  of 
personal  property,  to  the  husband  or  wife 
of  the  decedent,  nor  for  any  succession  of 
real  estate,  where  the  successor  was  the 
wife  of  the  predecessor.  But  by  the  3d 
section  of  the  Act  of  the  13th  of  July, 
1870,  the  above  taxes  on  legacies  and  suc- 
cessions have  been  repealed. 


OF   A   WILL.  343 

mother  or  any  lineal  ancestor  of  the  deceased  the  duty  is  one  per  cent. 
If  to  a  brother  or  sister,  or  any  descendant  of  a  brother  or  sister,  the 
duty  is  three  per  cent.  If  to  a  brother  or  sister  of  the  father  or  mother 
of  the  deceased,  or  any  descendant  of  such  brother  or  sister,  five  per 
cent.  If  to  a  brother  or  sister  of  a  grandfather  or  grandmother  of  the 
deceased,  or  any  descendant  of  such  brother  or  sister,  six  per  cent.  And 
if  the  legacy  be  to  any  person  in  any  other  degree  of  collateral  consan- 
guinity to  the  deceased,  or  to  any  stranger  in  blood,  the  duty  is  ten  per 
cent.(a:)  But  the  husband  or  wife  of  the  deceased  are  exempt  from  all 
legacy  duty,  and  so  also  are  the  royal  family.  By  the  Succession  Duty 
Act,  1853,  leasehold  property  although  personal  estate,  is  exempted 
from  legacy  duty,  and  is  charged  in  lieu  thereof  with  a  succession  duty, 
calculated  upon  the  same  principles  as  the  duty  on  real  property.(j/) 

If  a  legacy  be  given  to  an  infant,  or  to  a  person  absent  beyond  the 
seas,  the  only  way  in  which  the  executor  can  obtain  a  proper  discharge 
for  such  legacy  is  by  payment  of  it,  after  deducting  the  legacy  duty,  into 
the  Bank  of  England,  with  the  privity  of  the  accountant-general  of  the 
Court  of  Chancery,  to  be  placed  to  the  account  of  the  person  for  whose 
benefit  the  same  shall  be  so  paid.  The  money  is  then  laid  out  by  the 
accountant-general  in  the  purchase  of  consols,  which,  with  the  dividends 
thereon,  are  afterwards  transferred  and  paid  to  the  person  entitled,  or 
otherwise  applied  for  his  benefit,  on  application  to  the  Court  of  Chancery 
by  *petition  or  motion  in  a  summary  way. (2)  The  legacy  duty  r^co^j^-i 
on  annuities  for  lives  is  fixed  by  tables  given  in  the  Succession 
Duty  Act,  and  is  payable  by  four  equal  payments,  to  be  made  success- 
ively on  completing  each  of  the  first  four  years'  payments  of  the  an- 
nuity. («) 

(x)  Stat.  55  Geo.  c.  184. 

(y)  Stat.  16  &  17  Vict.  51,  ss.  1,  19,  21.    See  Principles  of  the  Law  of  Real  Property 
240,  4th  ed  ;  249,  5th  ed.  ;  259,  6th  ed.;  265,  7th  ed. ;  276,  8th  ed. 

(z)  Stat.  36  Geo.  III.  c.  52,  s.  32  ;  Ex  parte  Bennett,  V.-C.  K.  B.  15  Jur.  213. 
(a)  Stat.  16  &  17  Vict.  c.  51,  s.  31 ;  36  Geo.  III.  c.  52,  s.  8. 

The  statutes  of  Pennsylvania  contain  decedent,  coming  to,  or  about  to  be  en- 
provisions,  by  which  collateral  inherit-  joyedby,  any  other  person  than  the  "father, 
ances  are  subjected  to  a  certain  tax  ;  this  mother,  husband,  wife,  children,  and 
tax  does  not  vary  according  to  the  degree  lineal  descendants  of  such  decedent,'' 
of  relationship,  as  in  the  English  laws,  and  provided,  the  estate  of  the  decedent  ex- 
the  Internal  Revenue  Act  above  referred  ceeds  in  amount  two  hundred  and  fiftj' 
to,  but  is  fixed  at  five  per  cent,  upon  the  dollars.  Purd.  Dig,  (1861),  p.  148,  &c. 
estate,  real,  personal,  or  mixed,  of  every 
28 


344 


OF    PERSONAL    ESTATE   GENERALLY. 


A  legacy  may  be  either  specific,  demonstrative,  or  general.^     A  specific 
legacy  is  a  bequest  of  a  specific  part  of  the  testator's  personal  estate. 


1  "  A  specific  legacj'  is  a  disposition  of  a 
certain  thing,  which  may  be  known  and 
distinguished  from  any  other  thing  of  the 
same  kind  ;''  hence  a  bequest  of  "  my  East 
Haddam  bank  stock"  is  a  specific  legacy  : 
Brainerd  v.  Cowdry,  16  Conn.  1;  or,  of 
"all  mj'  stock  which  I  hold  in  the  Union 
Bunk  of  Pennsylvania:"  Blackstone  v. 
Blackstone,  3  Watts  33.') ;  and  so,  a  be- 
quest of  a  horse,  or  other  individual 
thing,  or  money  in  a  bag,  or  drawer,  is  a 
specific  legacy :  Mathis  v.  Mathis,  3  Harri- 
son 59.  "  But  if  a  sum  of  money  is  be- 
queathed, to  be  laid  out  in  the  purchase  of 
lands,  or  to  be  vested  in  particular  securi- 
ties, it  is  a  mere  pecuniary  legacy  ;  for  the 
legatee  cannot,  in  that  case,  sever  that 
from  the  general  fund,  so  as  to  establish  a 
right  to  the  identical  sum  in  specie.  And 
this  he  must  be  able  to  do,  in  order  to 
make  his  legacy  specific.  Thus,  in  a  be- 
quest of  stock,  if  the  testator  owned  it  at 
the  time,  it  is  specific  ;  more  especially,  if 
it  can  be  collected,  from  the  will,  that  the 
testator  intended  to  confine  the  bequest  to 
the  stock  he  had  on  hand  at  the  time  of 
his  death.  As  if  the  legacy  be  of  my 
stock,  or  part  of  my  stock,  or  in  my  stock. 
But  if  the  testator  did  not  own  the  stock 
when  he  made  the  will,  or  died,  but  di- 
rected it  to  be  purchased  out  of  his  per- 
sonal estate,  for  particular  persons  :  on 
the  question  whether  these  legacies  were 
specific,  or  pecuniary,  it  was  held  by  the 
court,  that  they  were  pecuniary:"  White 
et  al.  V.  Beattie,  Exr.,  1  Dev.  Eq.  87  ;  s.  c. 
Id.  320.  And  see,  also.  Smith  v.  Smith,  23 
Geo.  21. 

*'  So  a  bequest  by  a  testator  to  his  wife, 
in  the  following  words :  '  I  wish  her  to 
take  Stanford  in  her  third  of  the  property, 
if  she  chooses,'  is  not  a  specific  legacy  to 
the  wife,  but  only  gives  her  the  right  to 
take  the  legacy  »t  a  fair  valuation  ;  and  if 
that  valuation  is  more  than  her  share,  she 
must  account  for  the  surplus  :"  Young  et 
al.  V.  Carson,  Admr.,  et  al.,  1  Dev.  &  Bat. 
360.      And,  where    a   testator   bequeaths 


bank  stock  generally,  without  saying  it  is 
the  bank  stock  he  owns,  the  bequest  will 
be  general,  and  not  specific.  But  when, 
after  giving  several  legacies  of  bank  stock, 
in  giving  another  legacy  of  bank  stock,  he 
used  this  expression,  "  In  case  there  should 
be  any  deficiency  in  the  bank  stock,  which 

1  hold  at  my  death,  as  compared  with  the 
amount  bequeathed  in  my  will  and  testa- 
ment," it  was  held,  that  he  meant  the 
stock  which  he  should  then  have,  and 
therefore  the  legacies  were  specific : 
McGuire  et  al.  v.  Evans  et  al.,  5  Ired.  Eq. 
269.  See,  also,  Hoff's  Ap.,  24  Penn.  St. 
200. 

For  other  instances  of  specific  legacies, 
see  Cuthbert  et  al.  v.  Cuthbert  et  al.,  3 
Yeates  48G  ;  Stickney  v.  Davis,  16  Pick. 
21  ;  White  v.  Winchester,  6  Id.  56  ;  Stout 
V.  Hart  et  al.,  Exrs.,  2  llalst.  414;  Walton 
V.  Walton,  7  Johns.  Ch.  262  ;  Lillard  v.  Rey- 
nolds, 3  Ired.  370  ;  Chase  v.  Lockermau, 
11  Gill  &  Johns.  186;  Hammond  v.  Ham- 
mond, 2  Bland  314  ;  Perry,  Exr.,  v.  Max- 
well, Exr.,  2  Dev.  Eq.  488  ;  Everitt  v.  Lane, 

2  Ired.  Eq.  550 ;  Warren,  Exr.,  v.  Wigfall 
et  al.,  3  Desauss.  47  ;  Wharley  i).  Wharley, 
1  Bail.  Eq.  397  ;  Gilbreath  v.  Alban  et  al., 
10  Ohio  64  ;  Howell  et  al.  v.  Hook's  Admr., 
4  Ired.  Eq.  188  ;  Christler's  Exr.  v.  Meddis, 
Admr.,  6  B.  Mon.  37;  Alsop's  Appeal,  9 
Penn.  St.  374  ;  Scholl  v.  Scholl,  5  Barb. 
312  ;  McGuire  et  al.  v.  Evans  et  al.,  5  Ired. 
Eq.  2G9  ;  Bailey  et  al.  Exrs.,  v.  Wagner  et 
al.,  2  Strobh.  Eq.  1  ;  Ludlam's  Estate,  13 
Penn.  St.  188  ;  Buchanan  v.  Pue,  Jr.,  Exr., 
6  Gill  112  ;  Van  Wagoner,  Exr.,  v.  Bald- 
win et  al.,  3  Halst.  Ch.  211  ;  Woods  v. 
Sullivan,  1  Swan  507  ;  Iloke  v.  Herman, 
21  Penn.  St.  301;  Wallace  v.  Wallace,  3 
Fost.  149 ;  McGlaughlin's  Exr.  v.  McGlaugh- 
lin's  Admr.,  24  Penn.  St.  20.  "  If  a  thing 
bequeathed  in  a  will,  by  such  a  descrip- 
tion as  to  distinguish  it  from  all  other 
things,  be  disposed  of,  so  that  it  does  not 
remain  at  the  death  of  the  testator,  or  if 
it  be  so  changed  that  it  cannot  be  called 
the  same  thing,  the  bequest  is  gone.     If 


OP   A   WILL. 


344 


Thus  a  bequest  of  "  the  service  of  plate,  which  was  presented  to  mc  on 
such  an  occasion,"  is  specific,  and  so  also  is  a  bequest  of  "  100?.  consols, 


such  a  legacy  be  of  a  debt,  paj^ment  neces- 
sarily makes  an  end  of  it.     The  legatee  is 
entitled  to  the  very  thing  bequeathed,  if  it 
be  possible  for  the  executor  to  give  it  to 
him  ;  but  if  not,  he  cannot  have  money  in 
place  of  it.     This  results  from   an  inflexi- 
ble rule  of  law,  applied  to  the   mere  fact, 
that  the  thing  bequeathed  does   not  exist, 
and  it  is  not  founded  on  any  presumed  in- 
tention of  the  testator :"  Hoke  v.  Herman, 
21   Penn.   St.   301  ;  Blackstone  v.   Black- 
stone,  3  Watts  335  ;  Gilbreath  v.  Alban  et 
al.,  Exrs.,  10  Ohio   64;  Newcomb,  Admr., 
V   St.  Peter's   Church   et  al.,  2  Sandf.   Ch. 
637 ;    Alsop's  Appeal,    9  Penn.    St.   374 ; 
McGuire  et  al.  v.  Evans  et  al.,  5  Ired.  Eq. 
269  ;  Bailey  et  al.,  Exrs.,  v.  Wagner  et  al., 
2  Strobh.  Eq.  1  ;  Ludlam's  Estate,  13  Penn. 
St.  188  ;  Beck  i'.  McGillis,  9  Barb.  35;  but 
"  a  legacy  is  not  extinguished  or  destroyed 
by  a  variation   of  the   testator's  interest, 
produced  by  operation   of  law  ;  as  where 
the  bequest  is  of  certain  bank  shares,  and 
the  charter  of  the  bank  expires,  and  the 
funds  are   conveyed  to  trustees,  who  di- 
vided   the   monej'S    received   among   the 
stockholders  ;  if  the  testator  receives  part 
of  the  dividends  from   the  trustees,  in  his 
lifetime,  it  is  an  ademption  jsro  ta7ito  only :" 
Walton  V.  Walton,  7  Johns.  Ch.  262  ;  Hoke 
V.  Herman,   21  Penn.  St.  301;  and  where 
there  is  a  bequest  of  the  proceeds  of  a  cer- 
tain bond  and  mortgage,  and  the  testator 
collects  any  portion  of  the  mortgage  debt, 
and  appropriates  it  to  other  purposes,  the 
legacy  is  so  far  adeemed,  and  the  legatee 
will  not  be  entitled  to  be  reimbursed  out 
of  other  property  of  the  estate  of  the  tes- 
tator ;  but  where  the  testator  takes  a  bond, 
of  the  purchaser  of  a  part  of  the  mort- 
gaged    premises,     for     a     proportionate 
amount   of    the   mortgage    debt,   but  the 
mortgage  is  not  released  from   the  land 
sold,  such  bond  and  its  proceeds,  are  pro- 
ceeds of  the  original  bond  and  mortgage, 
and  go  to  the    legatee  :    Gardiner  et  al., 
Exrs.,  V.  Printup  et  al.,  2  Barb.  83  ;  so,  also, 
where  a  testator  made  a  specific  bequest, 


of  all  notes  of  hand  which  were  then  pay- 
able to  him,  and  was  then  in  possession  of 
four  notes,  signed  by  two  persons,  and  af- 
terwards, before  his  death,  released  one  of 
the  signers,  and  took  new  notes  for  the 
debt,  from  the  other  signer,  secured  by  a 
mortgage  ;  it  was  held,  that  there  was  no 
ademption  of  the  legacy  :  Ford  v.  Ford,  3 
Fost.  212;  and  sec,  also.  Woods  et  al.  v. 
Moore,  4  Sandf.  589  ;  Van  Wagener,  Exr.,r. 
Baldwin  et  al.,  3  Halst.  Ch.  211  ;  Whitlock 
V.  Vann,  38  Geo.  562  ;  Stout  v.  Hart  et  al., 
Exrs.,  2  Halst.  414;  in  the  latter  of  which, 
a  distinction  is  taken  between  voluntary 
and  compulsory  payments,  as  regards  the 
ademption  of  a  specific  legacy. 

Specific  legacies  cannot  be  applied  to 
the  payment  of  the  debts  of  the  testator, 
until  the  general  funds  of  the  estate  are 
exhausted  :  Brainerd  v.  Cowdrey,  16  Conn. 
1  ;  White  et  al  v.  Beattie,  Exr.,  1  Dev.  Eq. 
320;  Wallace  v.  Wallace,  3  Fost.  149; 
Shaw  V.  McBride,  3  Jones  Eq.  173. 

"  The  courts  are  disinclined  to  recog- 
nize specific  legacies,  because  of  their  lia- 
bility to  sink  with  the  destruction  of  the 
thing  bequeathed,  or  the  fund  charged. 
But  as  it  was  obviously  impossible  to  es- 
teem as  purely  pecuniary,  many  of  the  tes- 
tamentary gifts,  which  judges  inclined  to 
withdraw  from  the  class  of  specific  lega- 
cies, they  were  driven  to  borrow  from  the 
civilians  a  term,  thought  to  be  descriptive 
of  a  species  of  donation,  holding  a  middle 
place  between  specific  and  pecuniary,  the 
only  kinds  distinctly  recognized  when 
Swineburne  wrote.  They  are  called  de- 
monstrative and,  like  general  legacies,  are 
gifts  of  mere  quantity,  but  differ  from 
these  by  being  referred  to  a  particular  fund 
for  payment.  They  arejso  far  general,  that 
if  the  particular  fund  be  called  in  or  fail, 
the  legatees  will  be  permitted  to  receive 
their  legacies  out  of  the  general  assets  ; 
yet  so  far  specific,  as  not  to  be  subject  to 
abatement  with  general  legacies,  on  de- 
ficiency of  assets.  They  are  thus  specific 
in  one   sense,  and  pecuniary  in  another  ; 


344  OF    PERSONAL   ESTATE    GENERALLY. 

now  standing  in  my  name  at  tlie  Bank  of  England,"(6)  or  of  "  100?. 
consols,  part  of  my  stock. "(c)  A  specific  legacy  must  be  paid  or  retained 
by  the  executor  in  preference  to  those  which  are  general,  and  must  not 
be  sold  for  the  payment  of  debts  until  the  general  assets  of  the  testator 
are  exhausted. (c?)  It  is,  however,  liable  to  ademption  by  the  act  of  the 
testator  in  his  lifetime.  Thus,  in  the  instances  given  above,  if  the  tes- 
tator should  part  with  the  plate,  or  sell  the  stock  in  his  lifetime,  the 
legacy  will  be  adeemed,  and  the  legatee  will  lose  all  benefit.(e)  A  demon- 
strative legacy  is  a  gift  by  will  of  a  certain  sum  directed  to  be  paid  out 
of  a  specific  fund.  Thus,  "  I  bequeath  to  A.  B.  the  sum  of  50/.  sterling, 
to  be  paid  out  of  the  sum  of  100/.  consols  now  standing  in  my  name  at 
at  the  Bank  of  England,"  is  a  demonstrative  legacy.  Such  a  legacy  is 
not  liable  to  ademption  by  the  act  of  the  testator  in  his  lifetime ;  for  it 
j-^oj^-,  is  considered  to  be  the  testator's  *intention  that  the  legatee 
^  ^  ■  should  at  all  events  have  the  legacy  ;  but  that  it  should,  if  possible, 
be  paid  out  of  the  fund  he  has  pointed  out.  If  therefore  the  testator  in 
this  case  should  sell  the  100/.  consols  in  his  lifetime,  the  50/.  will  still  be 
payable  to  the  legatee  out  of  the  general  assets. (/)  A  demonstrative 
legacy  is  accordingly  more  beneficial  to  the  legatee  than  a  specific 
legacy.     And  it  is  also  more  beneficial  than  a  legacy  which  is  merely 

(6)  Roper  on  Legacies,  c.  3;  Gordon  v.  Duff,  28  Bcav.  519. 

(c)  Kirby  i;.  Potter,  4  Ves.  ToO  a;  Hayes  v.  Hayes,  1  Keen  97;  Shuttleworth  v. 
Greaves,  4  MyL  &  Or.  35. 

{d)  Brown  v.  Allen,  1  Vern.  31  ;  Hinton  v.  Pinko,  1  P.  Wms.  539;  Sleecb  v.  Thor- 
ington,  2  Ves.  sen.  560. 

(e)  Ashburner  v.  M'Giiire,  2  Bro.  C.  C.  108. 

(/)  Roberts  v.  Pocock,  4  Ves.  150;  Attwater  v.  Attvvater,  18  Beav.  330. 

specific,  as  given  out  of  a  particular  fund,  legacy  specific.  If  it  be  manifest  there 
and  not  out  of  the  estate  at  large;  pecu-  was  a  fixed  and  independent  intent  to  give 
niary,  as  consisting  only  of  definite  sums  the  legacy,  separate  and  distinct  from  the 
of  money,  and  not  amounting  to  a  gift  of  property  designated  as  the  source  of  pay- 
the  fund  itself,  or  any  aliquot  part  of  it,  ment,  the  legacy  will  be  deemed  general 
the  mention  of  the  fund  being  considered  or  demonstrative,  though  accompanied  by 
rather  by  way  of  demonstration  than  con-  a  direction  to  pay  it  out  of  a  particular 
dition— rather  as  showing  how,  or  by  what  estate,  or  fund,  specially  named:"  Walls 
means  the  legacy  may  be  paid,  than  v.  Stewart,  16  Penn.  St.  280.  And  see 
whether  it  shall  be  paid  at  all.  ...  In  also,  Enders,  Exr.,  v.  Enders,  2  Barb.  362  ; 
this,  as  in  other  questions,  springing  from  In  re  Barklay's  Estate,  10  Penn.  St.  387; 
the  construction  of  wills,  the  intention  of  Bullict's  Appeal,  14  Id.  461 ;  Wallace  v. 
the  testator  is  to  be  principally  ascertained,  Wallace,  3  Post.  149;  Walton  v.  Walton,  7 
and  it  is  said  to  be  necessary,  that  the  in-  Johns.  Ch.  262  ;  Giddings  v.  Seward,  10  N. 
tention  be  either  expressed  in  reference  to  Y.  365  ;  Irwin's  Ap.,  28  Penn.  St.  363  ; 
the  thing  bequeathed,  or  otherwise  clearly  Glass  v.  Dusen,  17  Ohio  St.  413;  Arm- 
appear    from   the    will,   to    constitute   a  strong's  Ap.,  63  Penn.  St.  312. 


OF   A   WILL.  345 

general ;  for  being  payable  out  of  a  specific  fund,  it  is  not,  while  that 
fund  exists,  liable  to  abatement  with  the  general  legacies.(^)  A  general 
legacy  is  one  payable  only  out  of  the  general  assets  of  the  testator,  and 
is  liable  to  abatement  in  case  of  a  deficiency  of  such  assets  to  pay  the 
testator's  debts  and  other  legacies.  A  bequest  to  A.  of  100?.  sterling  is 
a  general  legacy ;  so  is  a  bequest  of  lOOZ,  consols,  without  referring  to 
any  particular  stock  to  which  the  testator  may  be  entitled.(/t)  A  be- 
quest of  a  mourning  ring,  of  the  value  of  101.  is  also  a  general  legacy, 
no  specific  ring  of  the  testator's  being  referred  to.(z')  In  the  two  last 
cases,  the  executor  would  be  bound  to  set  apart  or  buy  the  stock,  or 
purchase  the  ring  for  the  legatee  out  of  the  general  assets  of  the  testator, 
supposing  them  suflScient  for  the  purpose ;  and  should  there  be  a  defi- 
ciency, the  amount  of  the  stock,  or  the  value  of  the  ring  to  be  purchased, 
would  abate  proportionably.  If,  however,  any  legacy  should  be  given 
for  a  valuable  consideration,  it  will  not  be  liable  to  abatement  with  the 
other  general  legacies.  An  example  of  this  exception  to  the  usual  rule 
occurs  in  the  case  of  legacies  given  by  husbands  to  their  wives  in  con- 
sideration of  their  releasing  *their  dower.(A:)  And  by  the  act  r^o  i/^-i 
for  the  amendment  of  the  law  relating  to  dower,(?)  it  is  pro- 
vided,(wi)  that  nothing  therein  contained  shall  interfere  with  any  rule  of 
equity  or  of  any  ecclesiastical  court,  by  which  legacies  bequeathed  to 
widows  in  satisfaction  of  dower  are  entitled  to  priority  over  other  legacies. 

When  a  legacy  is  bequeathed  by  a  testator  to  his  creditor,  it  is  con- 
sidered to  be  a  satisfaction  of  the  debt,  if  the  legacy  be  equal  to  or 
greater  than  the  amount  of  the  debt.{nf     But  if  it  be  less  than  the 

(ff)  Acton  V.  Acton,  1  Meriv.  1V8  ;  Livesay  v.  Redfern,  2  You.  &  Col.  90. 

(h)  Wilson  V.  Brownsmith,  9  Ves.  180.  See,  however,  Townsend  v.  Martin,  7  Hare 
Al\,qu.? 

(?)  1  Roper  on  Legacies,  c.  3,  s.  2. 

(k)  Burridge  v.  Bradyl,  1  P.  Wms.  127  ;  Norcott  v.  Gordon,  14  Sim.  258. 

(/)  Stat.  3  &  4  Will.  IV.  c.  105.  (m)  Sect.  12. 

(n)  Fowler  v.  Fowler,  3  P.  Wms.  353 ;  Fourdrin  v.  Gowdey,  3  M.  &  K.  383,  409 ;  2 
Roper  on  Legacies,  c.  17,  s.  1  ;  Edmonds  v.  Low,  3  Kay  &  J.  318. 


1  A  legacy  will  not  be  a  satisfaction  of  legacy  shall  be  a  satisfaction  of  the  debt, 

the  testator's  debt,  unless  it  was   so  in-  on  the  presumption  that  a  man  must  be 

tended.     In  the   case   of  Byrne   et  al.  v.  intended  to  be  just  before  he  is  bountiful, 

Byrne  et  al.,  Exrs.,  5  S.  &  R.  54,  Judge  and  that  his  intent  is  to  pay  a  debt,  and 

Yeates,   in  deciding   this    principle,  uses  not  to  give  a  legacy.     The  rule  itself  is 

the  following  language  :  "  A  rule  has  pre-  not  founded  in  reason,  and  often  tends  to 

vailed,   that  whenever    a  person,   by  his  defeat  the  bounty  of  testators  :  and  able 

will,  gives  a  legacy  as  great,  or  greater  chancellors  have  thought  it  more  agree- 

than  the  debt  he  owes  to  the  legatee,  such  able  to  equity,  to  construe  a  testator  to  be 


346 


OF    PERSONAL    ESTATE    GENERALLY. 


debt,(o)  or  payable  at  a  different  time,(jt;)  or  of  a  different  nature  from 
the  debt,(^)  or  if  the  debt  be  contracted  subsequently  to  the  date  of  the 
will,(/-)  or  if  the  will  contain  an  express  direction  for  payment  of  debts 
and  lcgacies,(«)  the  legacy  will  not  be  a  satisfaction.  The  leaning  of  the 
courts  is  against  the  doctrine  of  the  satisfaction  of  debts  by  legacies,  a 
doctrine  which  seems  to  have  been  established  on  rather  questionable 
grounds.  When,  however,  a  sum  of  money  is  due  to  a  child  by  way  of 
portion,  the  inclination  of  the  courts  is  against  double  portions ;  and  a 
legacy  to  such  a  child  is  accordingly  regarded  as  a  satisfaction  of  the 

(o)   Graham  v.  Graham,  1  Ves.  sen.  2G2. 

(jo)  Nicholls  V.  Judson,  2  Atk.  300;  Hales  v.  Darrell,  3  Beav.  324. 
{q)  Alleyn  v.  Alleyn,  2  Ves.  sen.  37  ;  Bartlett  v.  Gillard,  3  Russ.   149 ;  Fourdrin  v 
Gowdey,  3  MyL  k  K.  383,  409. 
(r)  Cranmer's  Case,  2  Salk.  508. 
(s)  Richardson  v.  Greese,  3  Atk.  65  ;  Hassell  v.  Hawkins,  4  Drew.  468. 

Exrx.,  16  Vt.  151  ;  Perry,  Exr.,  v.  Maxwell, 
Exrx.,  2  Dev.  Eq.  488  ;  Stagg  v.  Beekman, 
2  Edw.  Ch.  89  ;  Van  Riper  et  al.  v.  Van 
Riper  et  al.,  Exrs.,  1  Green  Ch.  1  ;  Ward, 
Exr.,  V.  Coffield,  1  Dev.  Eq.  108;  Dey  v. 
Williams  et  al.,  2  Dev.  &  Bat.  Eq.  66; 
Ladson  et  al.  v.  Ward  et  al.,  Exrs.,  1 
Desauss.  315  ;  Caldwell's  Exr.  v.  Kinkhead 
et  al.,  1  B.  Mon.  230;  Cloud  v.  Clinken- 
beard's  Exrs.,  8  B.  Mon.  398;  Waters  v. 
Howard  et  al.,  1  Md.  Ch.  Decs.  112  ;  Parker 
V.  Coburn,  10  Allen  82;  Wesco's  Ap.,  52 
Penn.  St.  195;  Homer  v.  McGaughy,-  62 
Id.  189. 

Nor  is  a  legacy  by  a  creditor  to  his 
debtor,  primii  facie,  a  discharge  or  release 
of  his  debt ;  and  the  debt  may  be  set  off  by 
the  executor,  against  the  legacy:  Strong's 
Exr.  V.  Bass  et  al.,  35  Penn.  St.  333; 
but,  if  the  will,  or  the  declarations  of  the 
testator,  before,  at,  or  after  the  making  of 
the  will,  show  that  such  was  his  intention, 
the  law,  always,  if  possible,  favoring  the 
wishes  of  the  decedent,  will  construe  in 
accordance  with  that  intention :  Clark  v. 
Bogardus,  12  Wend.  67;  Ricketts  t>.  Liv- 
ingston, Exr.,  2  Johns.  Cas.  97  ;  Sorelle's 
Exrs.  V.  Sorelle,  5  Ala.  245;  Stagg  v. 
Beekman,  2  Edw.  Ch.  89;  Zeigler  et  al., 
Exrs.,  V.  Eckhart,  6  Penn.  St.  13 ;  Lewis  v. 
Thompson,  2  Richard.  Eq.  75 ;  Gallego  v. 
Gallego's  Exr.,  2  Brockenb.  291. 


both  just  and  generous,  where  the  interest 
of  third  persons  are  not  affected.      And 
courts    of  justice   will    now    lay  hold    of 
slight  circumstances  to  get  rid  of  the  rule. 
Legacies  are  considered  as  gratuities,  and 
are  always  construed  favorably.     If  they 
be  less  than  the  sum  due,  payable  on  a 
contingency,   or   a  future   day,   on  these, 
and  the  like  circumstances,  they  will  be  con- 
strued as  additional  bounties,  and  not  as 
satisfactions.     And,  although  the  contin- 
gency does  not  actually  happen,  and  the 
legacy  thereby  becomes  due,  yet  it  shall 
not  go  in  satisfaction  of  the  debt,  because 
a    debt  which    is   certain,    shall   not    be 
merged  or  lost  by  an  uncertain  and  con- 
tingent recompense.     For,  whatever  is  to 
be  a  satisfaction  of  a   debt,  ought  to  be  so 
in  its  creation,  and  at  the  very  time  it  is 
given,  which  such  contingent  provision  is 
not.   .  .  .  According  to  the  most  modern 
decisions,  it  is  presumed,  that  the  legacy 
must  be,  in  all  respects,  ejusdem  generis,  to 
cause  a  satisfaction  of  the  debt,  and  an 
apparent    intention,   in  the   will,   that    the 
testator  meant  it  as  such."     See,  also,  to 
the  same  effect:  Smith,  Exr.,  v.  Marshall, 
1  Root  159;  Strong  v.  Williams,  Exr.,  12 
Mass.   392  ;   Williams  v.   Crary,  5   Cowen 
370,   s.   c.   8    Id.    246,  and  4  Wend.  449; 
Byrne  et  al.  v.  Byrne  et  al.,  Exrs.,  5  S.  & 
R.  54;  Edelen's  Exrs.  v.  Dent's  Admrs.,  2 
Gill   &   Johns.    185;    Fitch    v.    Peckham, 


OF   A   WILL.  346 

portion  either  in  part  or  in  whole,  notwithstanding  such  legacy  may  be 
less  than  the  portion,  or  payable  at  a  different  period. (^)  A  r^.q  171 
*bequest  of  the  residue,  or  of  a  share  in  the  residue,  of  the  testa- 
tor's  estate,  will  also  be  considered  as  a  satisfaction  pro  tanto.(ti)  The 
presumption  of  satisfaction  is  indeed  so  strong,  that  it  is  difficult  to  say 
what  circumstances  of  variation  between  the  portion  and  the  legacy  will 
be  sufficient  to  entitle  the  child  to  both. 

By  a  statute  of  George  the  Second,  commonly  called  the  Mortmain 
Act, (a;)  no  hereditaments,  nor  any  money,  stock  in  the  public  funds,  or 
other  personal  estate  whatsoever  to  be  laid  out  in  the  purchase  of  here- 
ditaments, can  be  conveyed  or  settled  for  any  charitable  uses  (with  a  few 
exceptions),  otherwise  than  by  deed,  with  certain  formalities  mentioned 
in  the  act.(t/)  And  all  gifts  of  hereditaments,  or  of  any  estate  or  inter- 
est therein,  or  of  any  charge  or  incumbrance  affecting  or  to  affect  any 
hereditaments,  or  of  any  personal  estate  to  be  laid  out  in  the  purchase 
of  any  hereditaments,  or  of  any  estate  or  interest  therein,  or  of  any 
charge  or  incumbrance  affecting  or  to  affect  the  same,  to  or  in  trust  for 
any  charitable  uses  whatsoever,  are  rendered  void  if  made  in  any  other 
form  than  by  the  act  is  directed. (2)  This  has  been  very  strictly  con- 
strued, and  has  been  held  to  prohibit  the  bequest  for  charitable  pur- 
poses of  personal  estate  in  any  degree  savoring,  as  it  is  said,  of  the 
realty.  Thus,  it  has  been  decided  that  money  secured  on  mortgage  of 
real  estate,(a)  shares  in  a  canal  navigation, (i)  *and  leasehold  r^oio-i 
estates,(c)  cannot  be  left  by  will  for  any  charitable  purpose. 
But  more  recently,  the  strictness  of  the  courts  appears  to  have  relaxed  ; 
and  it  has  lately  been  held  that  money  secured  by  a  policy  of  assurance, 
although  the  company  may  invest  their  funds  in  real  estates,(£?)  and 
shares  in  a  banking  company  authorized  to  invest  money  on  mortgage 
of  real  estates,(e)  or  in  a  mining  company,(/)  are  not  within  the  statute. 

{t)  Hinchcliffe  v.  Hinchcliffe,  3  Yes.  516  ;  Weall  v.  Rice,  2  Riiss.  &  My.  251. 

{u)  Rickman  v.  Morgan,  2  B.  C.  0.  394;  Earl  of  Glengall  ».  Barnard,  1  Keen  769; 
affirmed  2  H.  of  L.  C.  131 ;  Beckton  v.  Barton,  27  Beav.  99,  lOG  ;  Montefiore  v.  Guedalla, 
1  De  G.,  F.  &  J.  93;  Coventry  v.  Chichester,  2  H.  &  Mill.  149;  2  De  G.,  J.  &  S.  336, 
reversed  Law  Rep.,  2  H.  of  L.  71. 

(x)  Stat.  9  Geo.  IL  c.  36,  s.  1. 

(/)  See  Principles  of  the  Law  of  Real  Property  55,  1st  ed.  ;  58,  2d  ed,  ;  60,  3d  and 
4th  eds. ;  63,  5th  ed.  ;  65,  6th  ed.  ;  67,  7th  ed.  ;  66,  8th  ed. 

(z)  Sect.  3. 

(a)  Attorney-General  v.  Meyrick,  2  Ves.  sen.  44. 

(6)  House  V.  Chapman,  4  Ves.  542.  (c)  Attorney-General  v.  Graves,  Amb.  155. 

(d)  March  v.  Attorney-General,  5  Beav.  433. 

(e)  Ashton  v.  Lord  Langdale,  4  De  G.  &  Sm.  402  ;  s.  c.  15  Jur.  868  ;  Myers  v.  Peri- 
gal,  2  De  G.,  M.  &  G.  599. 

(/)   Hayter  v.  Tucker,  4  Kay  &  J.  243.     See  Morris  v.  Glynn,  27  Beav.  218. 


348  OF   PERSONAL   ESTATE   GENERALLT. 

So  railway  scrip, (//)  and  shares  in  gas  companies, (7<)  clocks,  railways  and 
canals,(/)  although  such  shares  may  not  be  expressly  declared  by  the 
acts  establishing  tlie  undertakings  to  be  personal  estate,  are  now  held  to 
be  unaffected  by  the  statute.  But  debentures,  by  which  such  under- 
takings with  their  rates  and  tolls  are  mortgaged,  have  been  held  to  be 
within  the  act  ;{k)  though  such  debentures  as  are  mere  bonds  or  covenants 
to  pay  money,  and  not  mortgages,  are  clearly  unaffected  by  it.(Z)  AVith 
regard  to  the  bequest  of  money  to  be  laid  out  in  the  purchase  of  here- 
ditaments, it  ])as  been  decided  that  a  bequest  of  money  to  be  laid 
out  in  building  on  land  already  in  mortmain  is  good  ;(wi)  but  if 
some  land  already  in  mortmain  be  not  distinctly  referred  to,  a 
r*^-lQ1  Acquest  of  money  for  building  for  any  charitable  purpose 
*will  be  void,  as  implying  a  direction  for  the  purchase  of  land 
on  which  to  build. (n)  And  it  has  also  been  held  that  a  gift  is 
void  Avhich  tends  directly  to  bring  fresh  lands  into  mortmain,  as  a  gift 
of  money  to  a  charity  on  condition  that  other  persons  provide  the 
land.(o)  This  however  has  been  overruled. (j))  And  if  the  purchase  of 
land  be  not  involved  in  the  gift,  there  is  no  law  which  prevents  the  be- 
quest of  purely  personal  property  to  any  amount  for  charitable  pur- 
poses.^ A  bequest  to  a  charity  ought,  therefore,  to  be  directed  to  be 
paid  out  of  such  part  of  the  testator's  personal  estate  as  he  may  lawfully 
bequeath  for  such  a  purpose.     For  if  this  precaution  should  be  neglected, 

(g)  Ashton  v.  Lord  Langdale,  ubi  supra. 

(h)  Thompson  v.  Thompson,  1  Coll.  381  ;  Sparling  v.  Parker,  9  Beav.  450. 

(i)  Hilton  V.  Giraud,  1  De  G.  &  Sm.  183  ;  Sparling  v.  Parker,  ubi  supra;  WalkeV  v. 
Milne,  11  Beav.  507  ;  Ashton  v.  Lord  Langdale,  ubi  supra  ;  Edwards  v.  Hall,  6  De  G., 
M.  &  G.  74 ;  Linley  v.  Taylor,  1  GifF.  67  :  affirmed,  2  De  G.,  F.  &  J.  84. 

[k)  Ashton  v.  Lord  Langdale,  ubi  supra  ;  Re  Langham's  Trust,  10  Hare  446. 

[I)  Ashton  V.  Lord  Langdale,  ubi  supra. 

(m)  Glubb  V.  Attorney-General,  Amb.  373. 

(«)  Pritchard  v.  Arbouin,  3  Russ.  456  ;  Smith  v.  Oliver,  11  Beav.  481  ;  In  re  "Wat- 
mough's  Trusts,  V.-C.  M.,  Law  Rep.    8  Eq.  272. 

(o)  Attorney-General  v.  Davies,  9  Ves.  535;  Mathew  v.  Smith,  2  Keen  172;  Trye  v. 
Corporation  of  Gloucester,  14  Beav.  173. 
.      {p)  Philpott  V.  St.  George's  Hospital,  6  H.  of  L.  C.  338. 

1  By  the  11th  section  of  an  act  of  the  leg-  by  deed  or  will,  attested  by  two  credible, 

islature  of  Pennsylvania  (commonlj' called  and,  at  the  time,  disinterested  witnesses) 

the    "  Price  Act,"  from    the   name   of  its  at   least  one   calendar   month   before   the 

originator),  passed  26th  April,  1855,  it  is  decease  of  the  testator  or  alienor  ;  and  all 

provided,  that    "No   estate,  real    or   per-  dispositions  of  property  contrary  hereto, 

sonal,  shall  hereafter  be  bequeathed,  de-  shall  be  void,  and  go  to  the  residuary  lega- 

vised,  or  conveyed,  to  any  body  politic,  tee    or   devisee,    next    of    kin,    or    heirs, 

or  to  any  person,  in  trust  for  religious  or  according  to  law,"  etc.     Purd.  Dig.  (1861), 

charitable  uses,  except  the  same  be  done  p.  1018,  sec.  22. 


OF   A   WILL.  349 

the  charitable  legacies  will  fail  in  the  proportion  which  the  personal 
assets  savoring  of  the  realty  may  bear  to  those  which  are  purely  per- 
sonal.(^) 

Other  bequests  which  require  some  care  are  those  to  illegitimate 
children.  It  has  been  held  that  a  bequest  to  the  future  illegitimate 
children  of  a  particular  woman  is  void  as  tending  to  encourage  immo- 
ra.lity.(r)  And  it  is  clear  that  a  bequest  to  the  future  illegitimate  child- 
ren of  a  particular  man  is  also  void,  as  the  courts  cannot  enter  into  the 
inquiry  which  would  be  necessary  to  identify  such  children. («)  A  child 
prima  facie  means  a  legitimate  child ;  a  bastard  is  considered  by 
*thelaw  as  nullius  films.  Accordingly,  an  illegitimate  child  can  r*qcA-| 
never  take  under  a  gift  to  children,  unless  it  be  clear,  upon  the 
terms  of  the  will,  or  according  to  the  state  of  facts  at  the  making  of  it, 
that  legitimate  children  never  could  have  taken. (i)  An  illegitimate 
child  may,  however,  take  under  any  gift  in  which  he  is  sufficiently  iden- 
tified as  the  object  of  the  testator's  bounty.  Thus,  a  bequest  to  the  child 
of  which  a  woman  is  now  pregnant  is  good.(M)  And  if  illegitimate  child- 
ren have  acquired  the  reputation  of  being  the  children  of  the  testator 
or  any  other  person,  and  it  appear  by  necessary  implication  on  the  face 
of  the  will  that  such  persons  were  intended  in  a  bequest  to  children,  they 
will  be  entitled,  not  only  on  account  of  their  being  children,  but  on 
account  of  their  reputation  as  such.(a;)^ 

After  payment  of  the  testator's  debts  and  legacies,  the  residue  of  his 
personal  estate  must  be  paid  over  to  the  residuary  legatee,  if  any,  named 

(g)  Attorney-General  v.  Tyndall,  2  Eden  207  ;  s.  c.  2  Amb.  614;  Hodson  v.  Black- 
burn, 1  Keen  273  ;  Philanthropic  Society  v.  Kemp,  4  Beav.  581  ;  and  see  Robinson  v. 
Geldard,  3  Macn.  &  G.  735  ;  Tempest  v.  Tempest,  7  De  G.,  M.  &  G.  470 ;  Beaumont  v. 
Oliveira,  LL.  J.,  Law  Rep.  4  Chan.  309. 

(r)  Medworth  v.  Pope,  27  Beav.  71.  See  also  2  Jarm.  Wills,  153,  202,  2d  ed.  ;  204, 
3d.  ed. 

(s)  Wilkinson  v.  Adams,  1  Ves.  &  B.  466. 

(t)  Cartright  v.  Vawdry,  5  Ves.  530 ;  Godfrey  v.  Davis,  6  Ves.  43  ;  Harris  v.  Lloyd, 
1  T.  &  Russ.  310 ;  Bagley  v.  Mollard,  1  Russ.  &  My.  581  ;  Dover  v.  Alexander,  2  Hare 
275  ;   Re  Overhill's  Trust,  1  Sm.  &  G.  362. 

(m)  Gordan  v.  Gordan,  1  Meriv.  141. 

(x)  Wilkinson  v.  Adam,  1  Ves.  &  B.  422  ;  Gill  v.  Shelley,  2  Russ.  &  My.  336 ;  Mere- 
dith V.  Farr,  2  You.  &  Col.  525. 


1  By  the  3d   section   of  an  Act  of  the  shall  respectively  have   capacity  to  take 

Legislature  of  Pennsylvania,  approved  the  or  inherit  from  each  other  personal  estate 

27th  of  April,  1855,  ""illegitimate  children,  as  next  of  kin,  and  real  estate  as  heirs  in 

shall  take  and  be  known  by  the  name  of  fee    simple,"    &c.     Purd.    Dig.    (18(31),    p. 

their  mother,  and  they  and  their  mother  565,  sec.  40. 


350  OF   PERSONAL   ESTATE   GENERALLY. 

in  the  will.  A  will  of  personal  estate  has  always  been  considered  as 
speaking  from  the  death  of  the  testator  ;  and  it  is  now  expressly  enacted, 
that  every  will  shall  be  construed,  with  reference  to  the  real  and  personal 
estate  comprised  in  it,  to  speak  and  take  effect  as  if  it  had  been  executed 
immediately  before  the  death  of  the  testator,  unless  a  contrary  intention 
shall  appear  by  the  will.(y)  Hence,  it  follows  that  all  personal  property 
acquired  by  the  testator  between  the  time  of  making  his  will  and  his 
decease  will  pass  under  it.  If  any  legacy  should  lapse  by  the  death  of 
r*Q'n    *^^^®  legatee  in  the  testator's  lifetime,  or  should  fail  from  being 

contrary  to  law,  it  will  fall  into  the  residue,  and  belong  to  the 
residuary  legatee.  And  a  legacy  will  lapse  by  the  death  of  the  legatee 
in  the  testator's  lifetime,  although  given  to  the  legatee,  his  executors, 
administrators  and  assigns,(3)  for  these  words  are  merely  inserted  in 
analogy  to  the  limitation  of  real  estate  to  a  man  and  his  heirs.  If  a 
bequest  be  made  to  two  or  more  as  joint  tenants,  and  one  of  them  die  in 
the  lifetime  of  the  testator,  his  share  will,  not  lapse,  but  will  survive  to 
the  others. (a)  But  if  the  bequest  be  to  two  or  more  in  common,  and 
one  of  them  die  in  the  testator's  lifetime,  his  share  will  lapse  ;(6)  unless 
the  bequest  be  made  to  a  class,  as  to  the  children  of  A.  in  equal  shares, 
in  which  case  all  who  answer  that  description  at  the  testator's  decease,((?) 
and  also  (if  the  period  of  distribution  be  postponed  by  the  will)  all  who 
come  into  being  before  such  period, (f?)  will  be  entitled  to  divide  the 
bequest  amongst  them.  It  is,  however,  provided  by  the  recent  act  for 
the  amendment  of  the  laws  with  respect  to  wills,  that  where  any  person, 
being  a  child  or  other  issue  of  the  testator,  to  whom  any  personal  estate 
shall  be  bequeathed  for  any  interest  not  determinable  at  or  before  the 
death  of  such  person,  shall  die  in  the  testator's  lifetime  leaving  issue, 
and  any  such  issue  shall  be  living  at  the  death  of  the  testator,  such 
bequest  shall  not  lapse,  but  shall  take  effect  as  if  the  death  of  such 
person  had  happened  immediately  after  the  death  of  the  testator,  unless 
[-♦qco-i    a  contrary  intention  shall  appear  by  the  will.(e)^     *The  effect  of 

this  provision  is  curious.     If  the  legatee  had  died  immediately 

(y)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  24. 

(z)  Elliott  V.  Davenport,  1  P.  Wms.  83.       (a)  Morley  v.  Bird,  3  Ves.  628,  631. 

(b)  Bagwell  V.  Dry,  1  P.  Wms.  700  ;  Page  v.  Page,  2  P.  Wms.  489  ;  Barber  v.  Barber, 
3  Myl.  &  Cr.  688  ;  Bain  v.  Lescher,  11  Sim.  397. 

(c)  Viner  v.  Francis,  2  Cox  190  ;   2  Jarm.  Wills  74  ;   126,  2d  ed. ;     142,  3d  ed. ;    Lee 
V.  Pain,  4  Hare  250. 

(d)  Ayton  v.  Ayton,  1  Cox  327  ;  2  Jarm.  Wills  75  ;  127,  2d  ed. ;  143,  3d  ed. 

(e)  Stat.  7  Will.  IV.  &  1  Vict.  c.  26,  s.  33. 

1  Statutes  resembling  this  provision,  are     but  in  many  of  them,  these  enactments  are 
in  force  in  most  of  the  States  of  the  Union ;     more  comprehensive  than  those  prescribed 


OF   A   WILL. 


352 


after  the  testator,  leaving  a  will,  it  is  evident  that  the  estate  bequeathed 
to  him  would  have  passed  under  his  will.     It  has  been  decided,  there- 


by the  laws  of  England,  including  devises 
as  well  as  legacies,  within  the  letter  of  the 
acts,  and  embracing  other  than  lineal  de- 
scendants.   Thus,  in  New  Hampshire,  "  The 
heirs  in  the  descending  line,  of  any  devisee 
or   legatee    deceased   before  the  testator, 
shall  take  the  estate  devised  or  bequeathed, 
in  the  same  manner  the  legatee  or  devisee 
would  have  taken  the  same,  if  he  had  sur- 
vived."    Gen.  Stats,  of  N.  H.  (1867),  ch. 
174,  p.  358,  sec.  12.     The  same  is  true  of 
the  laws  of  Pennsylvania,  which  also  con- 
tain provisions  in  favor   of  brothers  and 
sisters  and  their  children,  as  regards  such 
devises  or  legacies;  as  will  be  seen  by  a 
reference   to    Purd.  Dig.   (1861),  p.    1017, 
sees.  14  and  15,  which  are  in  these  words: 
"No   devise  or  legacy  in  favor  of  a  child, 
or  other  lineal  descendant  of  any  testator, 
shall  be  deemed  or  held  to  lapse,  or  become 
void,  by  reason  of  the    decease    of  such 
devisee  or  legatee,  in  the  lifetime  of  the 
testator,  if  such  devisee  or  legatee  shall 
leave    issue    surviving  the    testator ;    but 
such  devise  or  legacy,  shall  be  good  and 
available  in  favor  of  such  surviving  issue, 
with  like  effect  as  if  such  devisee  or  legatee 
had  survived  the  testator,  saving  always 
to  every  testator  the  right  to  direct  other- 
wise.    No  devise  or  legacy  hereafter  made 
in  favor  of  a  brother  or  sister,  or  the  chil- 
dren of  a  deceased  brother  or  sister  of  any 
testator,    such    testator    not    leaving   any 
lineal   descendants,   shall   be   deemed   or 
held  to  lapse,  or  become  void,  by  reason 
of  the  decease  of  such  devisee  or  legatee, 
in    the   lifetime    of  the    testator,   if  such 
devisee  or  legatee  shall  leave  issue  sur- 
viving  the    testator  ;    but  such  devise  or 
legacy,  shall    be    good    and    available    in 
favor  of  such   surviving  issue,  with  like 
effect  as  if  such  devisee  or  legatee   had 
survived  the   testator,  saving   always    to 
every  testator  the  right  to  direct  other- 
wise." 

In  Georgia,  it  is  enacted,  that  "  From 
and  after  the  passage  of  this  act,  where 
any  person  named  as  legatee  in  the  will  of 


any  other  person,  shall  die  before  the  tes- 
tator, leaving  issue  that  shall  be  alive  at 
the  death  of  such  testator,  the  legacy,  pro- 
vided the  same  be  absolute,  and  without 
remainder  or  limitation,  shall  not  lapse  as 
heretofore,  but  shall  vest  in  such  issue." 
T.  R.  R.  Cobb's  New  Dig.  of  the  Laws  of 
Geo.  (1851),  vol.  i.,  p.  34£,  sec.  194. 

In  some  of  the  states,  it  is  provided  in 
addition  to  what  has  been  already  stated, 
that  the  devise  or  legacy  so  left  to  a  legatee 
or  devisee  who  has  died,  shall  go  to  his 
child  or  children,  as  if  he  had  died  intes- 
tate ;  and  in  New  Jersey,  it  is  expressly 
said,  that  this  shall  be  the  case,  even  where 
the  deceased  devisee  or  legatee  has  left  a 
wilL;  for,  to  quote  the  words  of  the  act, 
"  Whensoever  any  estate  of  any  kind,  shall 
or  may  be  devised  or  bequeathed,  by  the 
testament  and  last  will  of  any  testator  or 
testatrix,  to  any  person  being  a  child  or 
other  descendant  of  such  testator  or  tes- 
tatrix, and  such  devisee  or  legatee  shall, 
during  the  life  of  such  testator  or  testa- 
trix, die  testate  or  intestate,  leaving  a 
child  or  children,  or  one  or  more  descend- 
ants of  a  child  or  children  who  shall  sur- 
vive such  testator  or  testatrix,  in  that 
case,  such  devise  or  legacy  to  such  person 
so  situated  as  above  mentioned,  and  dying 
in  the  lifetime  of  the  testator  or  testatrix, 
shall  not  lapse,  but  the  estate  so  devised 
or  bequeathed,  shall  vest  in  such  child  or 
children,  descendant  or  descendants,  of 
such  legatee  or  devisee,  in  the  same  man- 
ner, as  if  such  legatee  or  devisee  had  sur- 
vived the  testator  or  testatrix,  and  had 
died  intestate,"  &c.  Nixon's  Dig.  of  the 
Laws  of  N.  J.  (1868),  pp.  1031,  1032,  sec. 
22.  For  such  differences  as  have  been 
noticed,  existing  between  the  statutes  of 
the  several  States,  see  Rev.  Stats,  of  Vt. 
(1839),  pp.  257,  258,  sec.  28;  Laws  of 
Tenn.  (Supplem.  1846),  p.  147,  sec.  3  ;  Dig. 
of  the  Stats,  of  Ark.,  p.  991,  sec.  14;  Pate 
V.  Pate,  40  Miss.  750;  Paschall's  Annot. 
Dig.  Laws  of  Texas,  p.  914,  art.  5365; 
Matthew's  Dig.  (Va.),  pp.  874,  875,  sec.  13  ; 


352  OF   PERSONAL   ESTATE   GENERALLY. 

fore,  that  the  will  of  the  legatee  shall,  after  his  death,  operate  on  the 
estate  bequeathed  to  liim  in  the  same  manner  as  if  he  had  been  living.(/) 
This  provision  has  been  held  to  apply  to  a  testamentary  appointment 
under  a  general  power  of  appointment,((/)  but  to  be  inapplicable  to  a 
testamentary  appointment  under  a  power  to  appoint  amongst  the  testator's 
children  :(h)  and  it  docs  not  extend  to  gifts  to  children  or  issue  as  a  class, 
and  not  individually. (/) 

If  there  Avere  no  residuary  legatee,  the  residue  of  the  testator's  personal 
estate,  after  payment  of  debts  and  legacies  formerly  belonged  to  the 
executor  for  his  own  benefit,  unless  a  contrary  intention  appeared  from 
his  being  left  executor  in  trust,(A;)  or  from  his  having  a  legacy  left  him 
for  his  trouble,(Z)  or  from  other  circumstances. (m)  But  by  a  modern 
statute,(?i)  it  is  enacted,  that  when  any  person  shall  die,  having  by  will 
or  codicil  appointed  any  executor,  such  executor  shall  be  deemed  by 
courts  of  equity  to  be  a  trustee  for  the  person  or  persons  (if  any)  who 
would  be  entitled  to  the  estate  under  the  Statute  of  Distributions,  in  respect 
P^orq-i  of  any  residue  not  expressly  disposed  of,  unless  it  shall  *appear 
by  the  will  or  any  codicil  thereto,(o)  that  the  person  so  appointed 
executor  was  intended  to  take  such  residue  beneficially.  The  Statute  of 
Distributions  is  that  under  which  the  personal  estate  of  any  one  dying 
intestate  is  distributed  between  his  widow  and  next  of  kin.  An  account 
of  this  statute  will  be  found  in  the  next  chapter. 

(/)  Johnson  v.  Johnson,  3  Hare  157.     Probate  duty  attaches:  Perry's  Executors  v. 
The  Queen,  Law  Rep.  4  Ex.  27. 

(g)  Eccles  v.  Cheyne,  2  Kay  &  J.  676. 

(h)  Griffiths  v.  Gale,  12  Sim.  354 ;  Freeland  v.  Pearson,  M.  R.,  36  L.  J.  N.  S.  Chan.  374. 

(i)  Browne  v.  Hammond,  Johnson  210. 

Ik)  Pring  v.  Pring.  2  Vern.  99;  Bagwell  v.  Dry,  1  P.  Wms.  700. 

{l)  Rachfieldf.  Careless,  2  P.  Wms.  158.       {m)  Mullen  v  Bowman,  1  Coll.  197. 

(re)  Stat.  11  Geo.  IV.  &  1  Will.  IV.  c.  40.       (o)  Love  v.  Gaze,  8  Beav.  472. 

Rev.  Stats,  of  N.  Y.  (5th  ed.),  vol.  iii.,  p.  (N.  C),  Eq.  163  ;  Rev.  Stats,  of  Wis.  (1858), 

146,  sec.  47;  Md.  Code,  vol.  i.,  p.  686,  art.  p.  581,  sec.  29;  2  Compil.  Laws  of  Mich. 

93,  sec.  304  ;  Rev.  Stats,  of  Maine  (1857),  (1857),  p.  868,  sec.  28  ;  Rev.  Stats,  of  R.  I. 

p.  454,  sec.  10;  Rev.  Code  of  N.  C.  (1855),  (1857),  p.  358,  sec.  12;  Geu.  Stats,  of  Mass. 

p.  611,  sec.  28;  Scales  v.  Scales,  6  Jones  (I860),  p.  479,  sec.  28. 


♦CHAPTER    IV.  [*354] 

OF    INTESTACY. 

The  ecclesiastical  courts  until  recently  had  jurisdiction  not  only  over 
the  wills  of  testators,  but  also  over  the  goods  of  persons  dying  intestate. 
This  jurisdiction,  though  of  long  standing,  appears  to  have  been  at  first 
gradually  acquired.  In  early  times  the  clergy,  being  possessed  of  almost 
all  the  learning,  appear  to  have  been  the  principal  framers  of  wills.  The 
power  they  thus  acquired  was  exercised  for  their  own  benefit,  every  man 
being  expected,  on  making  his  will,  after  bequeathing  to  his  lord  his 
heriot,  in  the  next  place  to  remember  the  church. (a)  If,  however,  a  man 
should  have  died  intestate,  without  opportunity  of  making  this  provision, 
the  distribution  of  his  goods  devolved  on  the  church,  together  with  his 
friends,  the  lords  first  having  taken  his  heriot.((^)  The  wife  and  the 
children  were  entitled  to  their  shares ;  and  that  part  of  the  goods  Avhich 
the  intestate  had  power  to  dispose  of  by  his  will  (called  the  portion  of  the 
deceased)  was  applied  by  the  church  in  pios  iisus.  This  application  to 
pious  uses  appears  to  have  been  as  follows  :  in  the  first  place,  the  bequest, 
which  it  was  to  be  presumed  the  intestate  would  have  made  to  the  church, 
was  retained,  and  the  residue  was  then  disposed  of  in  paying  the  debts 
of  the  deceased,  and  distributed  amongst  his  wife  and  children,  his  parents 
and  their  relatives.  That  this  was  the  case  appears  from  the  complaints' 
which  were  made  by  the  clergy  of  those  days,  of  the  interference  of  the 
temporal  *lords  in  cases  of  intestacy,  whereby  the  distribution  r*^^^-] 
of  the  effects  in  the  manner  pointed  out  was  prevented. (c)  The 
clergy  themselves,  however,  do  not  appear  to  have  been  always  free 
from  blame;  for  they  are  accused  of  having  frequently  taken  the  whole 
of  the  intestate's  portion  to  themselves,  making  no  distribution,  or  at 
least  an  undue  one,   amongst  the  creditors  and  relatives   of  the  de- 

(a)  Glanville,  lib.  7,  c.  5  ;  Bract.  60  a  ;  Fleta,  lib.  2,  c.  57. 

(6)  Bract.  60  b  ;  Fleta,  ubi  supra. 

(c)  Matthew  Paris  951,  Adrlitamenta  201,  204,  209  (Wats's  ed.,  London,  1640) ;  Con- 
stitutions of  Boniface,  Constitutiones  Provinciales  20,  at  the  end  of  Myndcwood's  Pro- 
vinciale  (Oxon.  1679),  recited  also  in  a  Constitution  of  Archbishp  Stratford  (Lynd. 
Prov.  lib.  3,  tit.  13).  See  Gent.  Mag.  New  Series,  vol.  ii.,  355,  474.  See  also  Dyke  v. 
Walford,  Privy  Council,  12  Jurist  839. 


355  OF  PERSONAL  ESTATE  GENERALLY. 

ceased  ;{d)  and  in  order  to  remedy  this  evil,  it  was  enacted  in  the  reign 
of  Edward  I.,  by  one  of  the  very  few  statutes  then  passed  relating  to 
personal  estate,(^)  that  the  ordinary  should  be  bound  to  answer  the  debts 
of  an  intestate,  so  far  as  his  goods  would  extend,  in  the  same  manner  as 
the  executors  would  have  been  bounden  if  he  had  made  a  testament. 
The  right  of  the  creditor  was  thus  clothed  with  a  remedy ;  for,  under 
this  statute,  an  action  at  law  might  be  brought  by  the  creditor  against 
the  ordinary  for  the  payment  of  his  debt :(/)  but  the  right  of  the  rela- 
tives to  the  surplus  still  remained  undefined. 

The  duty  of  administering  intestates'  effects  was  not,  .as  may  be  sup- 
posed, usually  performed  by  the  bishops  in  person.  For  this  purpose 
they  usually  appointed  an  administrator ;  but,  as  personal  property  rose 
in  importance,  it  became  desirable  that  this  administrator  should  not  be 
considered  as  the  mere  agent  of  the  bishop,  but  should  himself  have  a 
locus  standi,  in  the  king's  courts.  It  was  accordingly  enacted  by  a  stat- 
ute of  the  reign  of  Edward  III.,((7)  that  where  a  man  died  intestate  the 
j-^or^-i  *ordinaries  should  depute  the  next  and  most  lawful  friends  of  the 
deceased  to  administer  his  goods,  which  persons  so  deputed 
should  have  action  to  demand  and  recover  as  executors  the  debts  due  to 
the  deceased,  to  administer  and  dispend  for  the  soul  of  the  dead;  and 
should  answer  also,  in  the  king's  courts,  to  others  to  whom  the  deceased 
was  holden  and  bound,  in  the  same  manner  as  executors  should  answer. 
By  a  subsequent  statute(A)  administration  might  be  granted  to  the 
widow  of  the  deceased,  or  to  the  next  of  his  kin,  or  to  both,  as  by  the 
discretion  of  the  ordinary  should  be  thought  good.  The  widow  was 
usually  preferred  to  the  next  of  kin  in  the  grant  of  administration  •,{{) 
and  a  joint  grant  was  seldom  made,  so  seldom,  indeed,  that  the  powers 
of  co-administrators  appear  to  be  still  a  matter  of  doubt.(y)  In  grant- 
m<r  administration  to  the  next  of  kin,  the  ecclesiastical  courts  were 
guided  by  the  right  to  the  property  to  be  administered.(A;)  This  right 
will  be  hereafter  explained.  If  none  of  the  next  of  kin  would  take  out 
administration,  a  creditor  might  by  custom  do  so,  on  the  ground  that 
he  could  not  be  paid  his  debt  until  representation  were  made  to  the 
deceased  ;(Z)  and,  for  want  of  creditors,  administration  might  be  granted 

(d)  Fleta,  lib.  2,  c.  57.  (e)  Stat.  13  Edw.  I.  c.  19. 

(/)   1  Ro.  Abr.  906  ;    Bac.  Abr.  tit.  Executors  and  Administrators  (E.) 
(g)  31  Edw.  in.  c.  11.  {h)  21  Hen.  VIIL  c.  5. 

(i)  Webb  V.  Needham,  1  Adams  494. 

(/)  Shep.  Touch.  485,  486  ;  Williams  on  Executors,  pt.  3,  bk.  1,  ch.  2 
{k)  In  the  Goods  of  Gill"  1  Hagg.  342. 

(1)  Webb   V.  Needham,    1    Adami    494.      See    Coombs   v.   Coombs,    Law   Rep.    I 
P.  &  D.  288. 


OF    INTESTACY. 


356 


to  any.  person  at  the  discretion  of  the  court.(??i)  But  the  Court  of  Pro- 
bate Act,  1857, (n)  has  now  abolished  the  whole  of  the  jurisdiction  of  the 
ecclesiastical  courts  over  the  effects  of  intestates  ;  and  administration  of 
the  effects  of  deceased  persons  is  noAV  granted  by  that  court  in  the  same 
manner  as  the  probate  of  wills. (o)  And  after  the  *decease  of  r*or7-i 
any  person  intestate,  his  personal  estate  vests  in  the  judge  of 
the  Court  of  Probate  for  the  time  being,  until  letters  of  administration 
are  granted,  in  the  same  manner  and  to  the  same  extent  as  they  for- 
merly vested  in  the  ordinary.  (|j>)^ 

(to)  Williams  on  Executors,  pt.  1,  bk.  5,  ch.  2,  s.  1. 

(n)  Stat.  20  &  21  Vict.  c.  11,  amended  by  stat.  21  &  22  Vict.  c.  95. 

(o)  Ante,  p.  332.  {p)  Stat  21  &  22  Vict.  c.  95,  s.  19. 


1  In  the  State  of  New  York,  "Adminis- 
tration, in  case  of  intestacy,  shall  be  grant- 
ed to  'the  relatives  of  the  deceased,   who 
would  be  entitled  to  succeed   to    his  per- 
sonal estate,  if  they,  or  any  of  them,  will 
accept  the  same,  in  the  following  order: 
First,  to  the  widow  ;  second,  to  the   chil- 
dren ;  third,  to  the  father  ;  fourth,  to  the 
brothers ;  fifth,   to   the   sisters  ;  sixth,   to 
the  grandchildren  ;  seventh,  to  any  other 
of  the  next  of  kin,  who  would  be  entitled 
to  share  in  the  distribution  of  the  estate. 
If  any  of  the  persons,  so  entitled,  be  mi- 
nors, administration  shall   be  granted  to 
their  guardians  ;  if  none  of  the  said  rela- 
tives or  guardians  will  accept  the  same, 
then  to  the  creditors  of  the  deceased  ;  and 
the  creditor   first  applying,   if  otherwise 
competent,  shall  be  entitled  to  a  prefer- 
ence ;  if  no  creditor  apply,  then,  to  any 
other   person    or  persons    legally  compe- 
tent ;   but  in  the   city  of  New   York,  the 
public  administrator  shall  have  preference, 
after  the  next  of  kin,  over  creditors  and  all 
other  persons.     And  in  the  case  of  a  mar- 
ried woman  dying  intestate,  her  husband 
shall    be    entitled    to    administration,    in 
preference  to  any  other  person,  as  herein- 
after provided. 

"  Where  there  shall  be  several  persons, 
of  the  same  degree  of  kindred  to  the  intes- 
tate, entitled  to  administration,  they  shall 
be  preferred  in  the  following  order  :  First, 
males  to  females  ;  second,  relatives  of  the 
whole  blood,  to  those  of  the  half  blood  ; 
third,  unmarried  women,  to   such  as  are 


married  ;  and  when  there  are  several  per- 
sons equally  entitled  to  administration, 
the  surrogate  may,  in  his  discretion,  grant 
letters  to  one  or  more  of  such  persons  ;"  3 
Rev.  Stats,  of  N.  Y.  (5th  ed.),  pp.  158, 
159,  sees.  21  and  28. 

In  Massachusetts,  "  Administration  of 
the  estate  of  an  intestate,  shall  be  granted 
to  some  one  or  more  of  the  persons  here- 
inafter mentioned  ;  and  they  shall  be  re- 
spectively entitled  thereto,  in  the  follow- 
ing order,  to  wit : 

"  First,  his  widow,  or  next  of  kin,  or 
both,  as  the  judge  of  probate  shall  think 
fit ;  and  if  they  do  not  voluntarily  either 
take  or  renounce  the  administration,  they 
shall,  if  resident  within  the  county,  be 
cited  by  the  judge  for  that  purpose. 

"  Secondly,  if  the  persons  so  entitled  to 
administration,  are  incompetent,  or  evi- 
dently unsuitable  for  the  discharge  of  the 
trust,  or  if  they  neglect,  without  any  sutfi- 
cient  cause,  for  thirty  days  after  the  death 
of  the  intestate,  to  take  administration  of 
his  estate,  the  judge  of  probate  shall  com- 
mit it  to  one  or  more  of  the  principal 
creditors,  if  there  be  any  competent,  and 
willing  to  undertake  the  trust. 

"  Thirdly,  if  there  be  no  such  creditor, 
the  judge  shall  commit  administration  to 
such  other  person  as  he  shall  think  fit  ; 
provided,  however, 

"Fourthly,  that  if  the  deceased  were  a 
married  woman,  administration  of  her 
estate  shall  in  all  cases  be  granted  to  her 
husband,  if  competentand  willing  to  under- 


357 


OF    PERSONAL    ESTATE   GENERALLY. 


The  administrator,  when  appointed,  has  the  same  right  to  and  power 
over  all  the  personal  estate  of  the  intestate  as  his  executors  would  have 
had  if  he  had  made  a  will,(7)  and  this  right  and  power  relate  back  to  the 
time  of  the  intestate's  decease.(r)  The  same  duty  also  devolves  upon 
the  administrator  of  paying  the  debts  in  the  first  place.  The  provisions 
of  the  recent  statutes  for  protection  of  executors  in  distributing  the 

[q)  Williams  on  Executors,  pt.  2.  bk.  1,  ch.  I. 

(r)  Tharpe  v.  Stalhvood,  5  M.  &  G.  7G0  (E.  C.  L.  R.  vol.  44) ;  Foster  v.  Bates,  12  M. 
&  W.  226 ;  Welchman  v.  Sturgis,  13  Q.  B.  552  (E.  C.  L.  R.  vol.  GG). 


take  the  trust,  unless  she  shall,  by  force 
of  a  marriage  settlement,  or  otherwise, 
have  made  some  testamentary  disposition 
of  her  separate  estate,  or  some  other  pro- 
vision, which  shall  render  it  necessary  or 
proper  to  appoint  some  other  person 
to  administer  her  estate  ;  and  provided, 
also, 

"Fifthly,  that  if  the  deceased  leaves  no 
widow  or  next  of  kin  in  this  State,  ad- 
ministration^f  his  estate  shall  be  granted 
to  a  public  administrator  in  preference  to 
creditors:''  Gen.  Stats,  of  Mas*.  (1860),  p. 

483,  I  1. 

In  Pennsylvania,  "Whenever  letters  of 
administration  are  by  law  necessary,  the 
register  having  jurisdiction  shall  grant 
them  in  such  form  as  the  case  shall  require, 
to  the  widow,  if  any,  of  the  decedent,  or 
to  such  of  his  relations  or  kindred,  as  by 
law  may  be  entitled  to  the  residue  of  his 
personal  estate,  or  to  a  share  or  shares 
therein  after  payment  of  his  debts,  or  he 
may  join  with  the  widow  in  the  admin- 
istration, such  relation  or  kindred,  or 
such  one  or  more  of  them,  as  he  shall 
judge  will  best  administer  the  estate,  pre- 
ferring always  of  those  so  entitled,  such 
as  are  in  the  nearest  degree  of  consan- 
guinity with  the  decedent,  and  also  pre- 
ferring males  to  females ;  and  in  case  of 
the  refusal  or  incompetency  of  every  such 
person,  to  one  or  more  of  the  principal 
creditors  of  the  decedent,  applying  there- 
fore or  to  any  fit  person  at  his  discretion  ; 
provided,  that  if  such  decedent  were  a 
married  woman,  her  husband  shall  be 
entitled  to  the  administration  in  prefer- 
ence to  all  other  persons  :  and  provided 


further,  that  in  all  cases  of  an  administra- 
tion with  the  will  annexed,  where  there  is 
a  general  residue  of  the  estate  bequeathed, 
the  right  to  administer  shall  belong  to 
those  having  the  right  to  such  residue, 
and  the  administration  in  such  case  shall 
be  granted  by  the  register,  to  such  one  or 
more  of  them  as  he  shall  judge  will  best 
administer  the  estate."  Purd.  Dig.  (1861), 
p.  277,  sec.  28. 

For  the  statutes  of  the  several  States  on 
this  sqbject,  see  Gen.  Stats,  of  N.  H. 
(1867),  p.  360,  ch.  176,  sec.  2;  Stats,  of 
S.  C,  vol.  i.,  pp.  108,  109,  sec.  16  ;  Caru- 
thers  &  Nicholson's  Stat.  Laws  of  Tenn.,  p. 
72,  sec.  8  ;  Laws  of  Del.,  Rev.  Code  (1852), 
p.  297,  sec.  9  ;  Dig.  of  the  Stats,  of  Ark., 
p.  Ill,  sees.  6,  7  and  8;  How.  &  Hutch. 
Stat.  Laws  of  Miss.,  p.  395,  sec.  35 ;  Pas- 
chall's  Annot.  Dig.  Laws  of  Texas,  p.  304, 
arts.  1273,  1274  ;  2  Matthews's  Dig.  (Va.), 
p.  554,  §  4  ;  2  Compiled  Laws  of  Michigan 
(1857),  p.  876,  art.  2879,  sec.  3;  Code  of 
Ala.  (1852),  p.  338,  §  1667;  1  Md.  Code 
(1860),  p.  621,  art.  93,  sees.  18-31;  Rev. 
Stats,  of  Maine  (1857),  p.  411,  sec.  13; 
Nixon's  Dig.  Laws  of  N.  J.  (1868),  p.  303, 
sec.  7  ;  Rev.  Code  of  N.  C.  (1855),  p.  282, 
sec.  2  ;  vol.  i.,  Rev.  Stats,  of  Ky.  (1860),  p. 
502,  art.  2  ;  1  Rev.  Stats,  of  Ohio  (1860), 
p.  568,  sec.  12;  Laws  of  Iowa  (1860),  p.  409, 
sec.  2343  ;  Cobb's  New  Dig.  of  the  Laws  of 
Geo.  (1851),  vol.  i.,  p.  305,  sec.  59; 
Thomps.  Dig.  of  the  Laws  of  Fla.,  p.  196, 
sec.  5  ;  Rev.  Stats,  of  Vt.  (1839),  pp.  263, 
264,  sec.  3;  Civil  Code  of  La.,  arts.  1114 
to  1117;  Gross's  Stats,  of  111.  (1869),  p. 
808,  sec.  71. 


I 


OF   INTESTACY.  357 

assets  of  tlieir  testator  extend  also  to  the  administrator  of  tlie  effects  of 
an  intestate. (s)  He  has  also  the  same  privilege  as  an  executor  of  retain- 
ing his  own  debt  in  preference  to  all  others  of  the  same  degree.(f)  But 
the  surplus,  after  payment  of  the  debts,  must  be  distributed  amongst  the 
relatives  of  the  intestate  in  proportions  to  be  hereafter  mentioned.  In 
order  to  enable  the  administrator  to  inform  himself  of  the  state  of  the 
assets,  and  to  pay  the  debts  of  the  deceased,  the  same  period  of  a  year 
from  the  time  of  the  decease  as  is  allowed  to  an  executor  is  also  given  to 
the  administrator  before  he  can  be  required  to  make  any  distribution. (m) 
But,  notwithstanding  this  delay,  the  interest  of  the  persons  entitled  to 
the  surplus  vests  in  them  from  the  time  of  the  decease  *of  the  r*qco-i 
intestate  ;  so  that  in  case  any  of  them  should  die  within  a  twelve- 
month after  the  decease  of  the  intestate,  the  share  of  the  person  so  dying 
will  pass  to  his  own  executors  or  administrators. (a;) 

In  some  instances  administration  is  granted  for  a  limited  purpose,  or 
confined  to  a  given  time.  Of  this  Ave  have  already  had  an  instance  in 
the  case  of  administration  durante  minore  estate,  when  the  sole  executor 
named  in  a  will  is  under  age  ;(^)  and  the  same  sort  of  administration  is 
granted  on  intestacy,  in  case  of  the  minority  of  the  next  of  kin. (2;)  So 
if  the  executor  or  next  of  kin,  as  the  case  may  be,  should  be  out  of  the 
realm  at  the  time  of  the  decease  of  the  testator  or  intestate,  the  court 
will  grant  a  limited  administration  durante  ahsentid,  which  will  expire 
the  moment  of  the  return  of  such  executor  or  next  of  kin.  And  if  the 
executor  should  prove  the  will,  or  if  any  person  should  obtain  letters  of 
administration,  and  afterwards  go  to  reside  out  of  the  jurisdiction  of  the 
English  courts,  the  court  is  empowered  by  act  of  parliament(a)  to  grant 
administration,  at  the  end  of  the  year  from  the  death  of  the  testator  or 
intestate.  Again,  when  a  suit  concerning  the  right  of  administration  is 
pending  in  the  Court  of  Probate,  that  court  may  appoint  an  administra- 
tor pendente  lite,  who  will  have  all  the  rights  and  powers  of  a  general 
administrator,  other  than  the  right  of  distributing  the  residue  of  the 
personal  estate  ;(5)  and  the  administrator  so  appointed  may  receive  such 
reasonable  remuneration  for  his  trouble  as  the  court  may  think  fit.(c) 

(s)  Stats.  13  &  14  Vict.  c.  35,  s.  19 ;  22  &  23  Vict.  c.  35,  ss.  27,  28,  29  ;  23  &  24  Vict. 
c.  38,  s.  14,  ante,  pp.  341,  342  ;  but  not  stat.  23  &  24  Vict.  c.  l45,  s.  30,  ante,  p.  340. 

{t)  Warner  v.  Wainsford,  Hob.  127  ;  Williams  on  Executors,  pt.  3,  bk.  2,  ch.  2,  s.  6. 

{u)  Stat.  22  &  23  Car.  II.  c.  10,  s.  8.  {z)   Edwards  v.  Freeman,  2  P.  Wms.  442.. 

{y)  Ante,  p.  329. 

(2)  Williams  on  Executors,  pt.  1,  bk.  5,  ch.  3,  s.  3. 

(a)  Stat.  38  Geo.  III.  c.  87,  ss.  1-5,  extended  by  stats.  20  &  21  Vict.  c.  77,  s.  74;  21 
&  22  Vict.  c.  95,  s.  18. 

{b)  Stat.  20  &  21  Vict.  c.  77,  s.  70.  (c)  Sect.  72. 

29 


358  OF   PERSONAL    ESTATE    GENERALLY. 

r*qran  The  court  also  may  appoint  such  *administrator  or  any  other 
person  receiver  of  the  real  estate  of  the  deceased  pending  any 
suit  touching  the  validity  of  his  will,  if  it  affect  such  real  estate.(c?)  So 
if  a  will  should  have  heen  made,  but  the  executors  should  have  re- 
nounced, or  died  before  their  testator,  the  court  will  appoint  the  person 
having  the  greatest  interest  in  the  effects,  generally,  the  residuary 
legatee,  to  administer  the  same  according  to  the  directions  of  the  will,  in 
which  case  the  administration  granted  is  termed  an  administration  cum 
testamento  annexo,  with  tlie  will  annexed. (e)  And  it  is  now  provided, 
that,  if  by  reason  of  the  insolvency  of  the  estate  of  the  deceased,  or  other 
special  circumstances,  the  court  shall  think  it  necessary  or  convenient  to 
appoint  as  administrator  tuny  other  person  than  the  person  by  law  enti- 
tled to  the  grant,  the  court  may  do  so ;  and  every  such  administration 
may  be  limited  as  the  court  shall  think  fit.(/)' 

Letters  of  administration,  as  well  as  probates,  are  liable  to  the  pay- 
ment of  an  ad  valorem  stamp  duty  on  the  value  of  the  personal  estate  of 
the  deceased  within  the  United  Kingdom,  if  it  exceeds  in  value  the  sum 

{d)  Stat.  20  &  21  Vict.  c.  77,  s.  71. 
[e)  Williams  on  Executors,  pt.  1,  bk.  5,  oh.  3,  s.  1. 

(/)  Stat.  20  &  21  Vict.  c.  77,  s.  73  ;  In  the  Goods  of  Llanwarne,  Law  Rep.  1  P.  & 
D.  306  ;  In  the  Goods  of  Eraser,  Law  Rep.  1  P.  &  D.  327, 

1  This— last   ^kind    of    administrator    is  discretion  of  tUie  court,  in  <;ase  the  per- 

called  a  special  administrator,  or  .an^id-  sonal  estate  of  the  deceased  shall  be  sup- 

ministrator  ad   colligendum,   who   may  be  posed  to  be  in  different  counties."     Vol.  i, 

appointed  by  the  officer  having  the  proper  Md.  Code  (1860),  p.  630,  art.  93,  sec.  60. 

authority,  according  to  his  discretion,  for  And  see,  for  the  provisions  of  the  diflfer- 

the  purpose  of  preserving  the  estate  of  the  ent  States,  Cobb's  New  Dig.  of  the  Laws  of 

decedent,  until  .regular  letters  testament-  Geo.    (1851),   p.   283,  sec.   6,   and  p.  311, 

ary  or  of  administration  are  granted,  or  sec.  73  ;   Thompson's   Dig.  of  the  Laws  of 

until  the  will  is  established,  and  in  such  Fla.,  p.  198,  sec.  1  ;  How.  &  Hutch.  Stat, 

like  cases.  Laws  of  Miss.,  pp.  391,  392,  sec.  24;  Gen. 

"Letters  ad  colligendum,  may  be  granted  Stats,  of  Mass.  (1860),  p.  484,  sec.  6;  Rev. 

by  the  Orphans'  Court  of  the  county  in  Stats,  of  N.  Y.  (5th  ed.),  vol.  ill.,  pp.  160, 

which   the   will  was   proved  or  authenti-  161,  sec.  38 ;    2  Compil.  Laws  of  Michigan 

cated,  or  where  letters  of  :administration  (1857),  p.  877, art.   2881,  sec.  5;   Code  of 

ought  to  be  granted,  in  cases  of  delay,  on  Ala.  (1852),  p.  339,  sec.  1676;  Rev.  Stats, 

account  of  absence  from  the  State  of  an  of  Maine  (1857),  p.  413,  sec.  27;  Rev.  Code 

executor,  a  contest  relative  to  the  will,  or  of  N.  C.  (1855),  p.  283,  sees.  9  and   10  ;   I 

right  of  administration,  or  the  absence  or  Rev.  Stats,  of  Oliio  (1860),  p.  569,  sec.  14  j 

neglect  of  an  executor  or  person  entitled  Gross's  Stats,  of  111.   (1869),  pp.  803,  804, 

to  administration,  to  qualify,  or  from  any  sec.  38,i&c. ;  Paschall's  Annot.  Dig.  Laws  of 

other  cause;    and    such    letters    may   be  Texas,  pp.  305,  306,  arts.  1287,  1288,  1289. 
granted  to   one   or   more   persons,  in   the 


OF   INTESTACY.  359 

of  100?. ;  (g)  but  the  duty  on  letters  of  administration,  where  there  is  no 
will,  is  after  a  higher  rate  than  the  duty  on  probates,  or  on  letters  of 
administration  with  the  will  annexed. (A)^  A  heavy  penalty  is  imposed 
by  the  Stamp  Act  on  any  person  who  shall  take  possession  of,  or  in  any 
manner  administer  any  part  of  the  personal  estate  of  any  deceased  person, 
without  obtaining  *probate  or  administration  within  six  calendar  r^opn-i 
months  after  his  or  her  decease,  or  within  two  calendar  months 
after  the  determination  of  any  suit  or  dispute  respecting  the  will  or  the 
right  to  administration. (2)  The  same  exemptions  from  duty  in  favor  of 
seamen,  marines  and  soldiers,  which  have  been  established  with  respect 
to  the  probate  duty,(yfc)  apply  also  to  the  duty  on  letters  of  administration. 

The  office  of  administrator  is  not  transmissible,  like  the  office  of  exe- 
cutor.^ On  the  decease  of  an  administrator,  before  he  has  distributed 
all  the  effects  of  the  intestate,  a  new  administrator  must  be  appointed ; 
for  the  administrator  or  executor  of  such  administrator  has  no  right  to 
intermeddle.  So  if  an  executor  should  die  intestate,  without  having 
completely  distributed  his  testator's  effects,  an  administrator  must  be 
appointed  to  distribute,  according  to  the  will  of  the  testator,  such  of  his 
effects  as  were  not  distributed  by  the  deceased  executor.(?)  In  each  of 
these  cases  the  administration  granted  is  called  an  administration  de  bonis 
non  administratis,  of  the  goods  not  administered,  or,  more  shortly,  de 
bonis  non.{m)  All  second  and  subsequent  grants  of  probate  or  letters  of 
administration  must  be  made  in  the  principal  registry  of  the  Court  of 
Probate,  or  in  the  district  registry  where  the  will  is  registered  or  the 
original  grant  of  administration  has  been  made,  or  to  which  it  may  have 
been  transmitted.(w) 

The  application  of  an  intestate's  effects,  after  payment  of  his  debts,  is 
now  regulated  by  statutes  of  the  reign  *of  Charles  II.  and  James  pog]^-] 
II.,(o)  commonly  called  the  Statutes  of  Distribution,  by  which 

(ff)  Ante,  p.  336.  (h)  Stat.  55  Geo.  III.  c.  184. 

(j)  lOOZ.,  an(f  ten  per  cent,  on  the  stamp  duty.     Stat.  55  Geo.  III.  c.  184,  s.  37. 
(k)  Ante,  pp.  337,  338. 

(Z)  Shep.  Touch.  465;  Williams  on  Executors,  pt.  1,  bk.  3,  ch.  4. 
(m)  Williams  on  Executors,  pt.  1,  bk.  5,  ch.  3,  s.  2. 
(w)  Stat  21  &  22  Vict.  c.  95,  s.  20. 

(0)  22  &  23  Car.  II.  c.  10  ;  1  Jac.  II.  c.  17,  s.  7.  See  Watkins  on  Descents,  Appen- 
dix, 257  et  seq.  4th  edit. 


^  In  this  country,  there  is  no  distinction  with   the  will  annexed.     See  ante,  note  1, 

made,  as  to  revenue  duty,  between  letters  p.  336. 
of  administration,  where  there  is  no  will,         '  See  antt,  p.  329,  note, 
and  probates,  or  letters  of  administration, 


361  OF  PERSONAL  ESTATE  GENERALLY. 

Statutes  the  rights  of  the  relations  of  the  deceased  appear  to  have  been 
first  definitely  ascertained  and  rendered  legally  available.^  Under  these 
statutes,  if  the  intestate  leave  a  widow  and  any  child  or  children,  or  de- 
scendant of  any  child,  the  widow  shall  take  a  third  part  of  the  surplus  of 
his  effects.  If  he  leave  no  child,  nor  descendant  of  any  child,  she  shall 
have  a  moiety.  In  this  respect,  the  distribution  is  the  same  as  took 
place  under  the  ancient  law.  The  husband  of  a  married  woman  is  entitled 
to  the  whole  of  her  effects.(^)  If  the  intestate  leave  children,  two-thirds 
of  his  effects  if  he  leave  a  widow,  or  the  whole  if  he  leave  no  widow, 
shall  be  equally  divided  amongst  his  children,  or,  if  but  one,  to  such  one 
child.  But  the  descendants  of  such  children  as  may  have  died  in  the 
intestate's  lifetime,  shall  stand  in  the  place  of  their  parent  or  ancestor.(5') 
Such  children,  however,  as  have  been  advanced  by  the  parent  in  his  life- 
time must  bring  the  amount  of  their  advancement  into  hotchpot,  so  as  to 
make  the  estate  of  all  the  children  to  be  equal,  as  nearly  as  can  be  esti- 
mated. But  the  heir  at  law,  notwithstanding  any  lands  he  may  have  by 
descent  or  otherwise  from  the  intestate,  is  to  have  an  equal  part  in  the 
distribution  with  the  rest  of  the  children,  without  any  consideration  of 
the  value  of  such  land.(r)  If  the  intestate  leave  no  children  or  repre- 
sentatives of  them,  his  father,  if  living,  takes  the  whole  ;  or,  if  the  intes- 
tate should  have  left  a  widow,  one-half.  If  the  father  be  dead,  the 
mother,  brothers  and  sisters  of  the  intestate  shall  take  in  equal  shares, (s) 
r*^fi91  *subject,  as  before,  to  the  widow's  right  to  a  moiety ;  and 
brothers  or  sisters  of  the  half  blood  have  an  equal  claim  with 
those  of  the  whole  blood. (^)  If  any  brother  or  sister  shall  have  died  in 
the  lifetime  of  the  intestate,  leaving  children,  such  children  shall  stand 
in  loco  parentis,  provided  the  mother  or  any  brother  or  sister  be  living.(w) 
If  there  be  no  brother  or  sister,  nor  child  of  such  brother  or  sister,  the 
mother  shall  take  the  whole,  or,  if  the  widow  be  living,  a  moiety  only,  as 
before;  but  a  stepmother  can  take  nothing. (a:)  If  there  be  no  mother, 
the  brothers  and  sisters  take  equally,  the  children  of  such  as  may^e^ead 
standing  in  loco  i^arentis.     Beyond  brothers'  and  sisters'  children,  no 

{p)   Stat.  29  Ca.  II.  c.  3,  s.  25.  [q)  See  Burton's  Compendium,  pi.  1402. 

(r)  Stat.  22  &  23  Car.  II.  c.  10,  s.  5  ;    Boyd  v.  Boyd,  V.-C.  W.,  Law  Rep.  4   Eq.  302. 

(a)  Stat.  1  Jac.  II.  c.  17,  s.  7. 

{t)  Jessopp  V.  Watson,  1  Myl.  &  K.  665  ;  Burnet  v.  Mann,  1  Myl.  &  K.  672,  n. 

(m)  Lloyd  V.  Tench,  2  Ves.  sen.  215  ;  Durant  v.  Prestwood,  1  Atk.  454;  West  448. 

{x)  Duke  of  Rutland  v.  Duchess  of  Rutland,  2  P.  Wms.  216. 

1  Each  State  of  the  Union  has  its  own     modifications  of  the  Statutes  of  Charles 
Statute     of     Distributions ;     and     these,     IL,  and  James  II. 
slightly  diflfering  from  each  other,  are  but 


OF   INTESTACY.  362 

right  of  representation  belongs  to  the  children  of  relatives  with  respect 
to  the  shares  which  their  deceased  parents  would  have  taken.  And  if 
there  be  neither  brother,  sister  or  mother  of  the  intestate  living,  his  per- 
sonal estate  will  be  distributed  in  equal  shares  amongst  those  who  are 
next  in  degree  of  kindred  to  him. 

In  tracing  the  degrees  of  kindred  in  the  distribution  of  an  intestate's 
personal  estate,  no  preference  is  given  to  males  over  females,  nor  to  the 
paternal  over  the  maternal  line,(?/)  nor  to  the  whole  over  the  half  blood, 
as  in  the  case  of  descent  of  real  estate;  nor  does  the  issue. stand  iri. the 
plu(5e  of  ■tbe'ancestor.  The  degrees  of  kindred  are  reckoned  according 
to  the  crviT'law,  both  upwards  to  the  ancestor  and  downwards  to  the 
iisue^eacli  generation  counting  for  a  degree. (2)  Thus  from  *father  r^opo-i 
to^on,  or~lrom~son  to  father,  is  one  degree ;  from  grandfather 
to  grandson,  or  from  grandson  to  grandfather,  is  two  degrees ;  and  from 
brother  to  brother  is  also  two  degrees  ;  namely,  one  upwards  to  the 
father,  and  onFdownwards  to  the  other  son.  So  from  uncle  to  nephew 
is"!&F^e'ttegrees,  one  upwards  to  the  common  ancestor,  and  two  down- 
wards from  him  ;  and  from  nephew  to  uncle  is  also  three  degrees,  two 
upwards  and  one  downwards.  If  therefore  there  be  neither  issue,  father, 
brother,  sister  nor  mother  of  the  intestate  living,  such  persons  as  are  his 
next  of  kin,  according  to  the  rule  above  laid  down,  are  entitled  in  equal 
shares  /-Jcr  capita  to  his  personal  estate,  subject  to  his  wife's  right  to  a 
moiety,  should  she  survive  him.  As  the  kindred  becomes  more  distant, 
the  number  of  persons  entitled,  if  living,  as  well  as  the  difficulty  of 
proving  their  respective  pedigrees,  becomes  prodigiously  augmented. 
"  It  is  at  the  first  view  astonishing,"  says  Blackstone,(rt)  "  to  consider 
the  number  of  lineal  ancestors  which  every  man  has  within  no  very  great 
number  of  degrees  :  and  so  many  different  bloods  is  a  man  said  to  con- 
tain in  his  veins  as  he  hath  lineal  ancestors.  Of  these  he  hath  two  in 
the  first  ascending  degree,  his  own  parents ;  he  hath  four  in  the  second, 
the  parents  of  his  father  and  the  parents  of  his  mother ;  he  hath  eight 
in  the  third,  the  parents  of  his  two  grandfathers  and  two  grandmothers  ; 
and,  by  the  same  rule  of  progression,  he  hath  an  hundred  and  twenty- 
eight  in  the  seventh ;  a  thousand  and  twenty-four  in  the  tenth  ;  and  at 
the  twentieth  degree,  or  the  distance  of  twenty  generations,  every  man 
hath  above  a  million  of  ancestors,  as   common  arithmetic  will  demon- 

(y)  Moor  v.  Barham,  1  P.  Wins.  53. 

(z)  Mentney  v.  Petty,  Pre.  Cha.  593;    Wallis  v.  Hodson,  2  Atk.  117;  2  Black.  Com. 
504,  515. 
(a)   2  Black  Com.  203. 


363  OF    PERSONAL   ESTATE    GENERALLY. 

strate."     The  number  of  collateral  relations  who  may  claim  through 
such  ancestors  is  of  course  far  more  numerous. 

r*^C4~\  *The  estates  of  intestate  freemen  of  the  city  of  London,(5) 
and  of  persons  having  their  fixed  or  general  residence  within  the 
archiepiscopal  pi-ovince  of  York  (excepting  the  diocese  of  Chester),  were 
until  recently  distributed  according  to  peculiar  customs,  apparently  de- 
rived from  the  ancient  mode  of  distribution. (c)  Some  parts  of  Wales 
also  appear  to  have  been  subject  to  peculiar  customs  of  distribution  ;  for 
these  several  customs,  though  postponed  to  the  right  of  testamentary 
disposition  by  the  statutes  to  which  we  have  already  referred,((i)  were 
nevertheless  not  abolished  by  those  statutes  in  the  event  of  no  will  being 
made.  But  a  recent  statute  has  now  altogether  abolished  all  customary 
modes  of  administration. (<^) 

The  shares  of  persons  claiming  any  personal  estate  of  the  amount  or 
value  of  201.  or  upwards  under  an  intestacy  are  subject  to  the  same  duty 
as  legacies  to  persons  of  the  same  degree  of  kindred. (/)^  If  there  be 
no  next  of  kin,  the  crown,  by  virtue  of  its  prerogative,  will  stand  in 
their  place,(^)  but  subject  always  to  the  widow's  right  to  a  moiety  in 
case  she  should  survive.(/i) 

The  division  of  the  personal  estate  of  an  intestate,  effected  by  the 
Statute  of  Distributions,  is  remarkable  for  its  fairness.  The  only 
provision  which  might  be  amended  is  that  which  places  the  half  blood 
on  an  equality  with  the  whole.  A  corresponding  equality  in  interest 
and  feeling  but  rarely  exists  in  actual  life.  The  *proper  place 
•-  -I  for  the  half  blood  appears  to  be  that  now  assigned  to  them  in 
the  descent  of  real  estate,  according  to  the  recommendation  of  the 
Keal  Property  Commissioners,  namely,  next  after  those  of  the  same  de- 
gree of  the  whole  blood. (z)  The  appointment  of  an  executor  or  adminis- 
trator, in  whom  the  whole  personal  property  is  vested,  with  full  power  of 

(b)  Onslow  V.  Onslow,  1  Sim.  18. 

(c)  Williams  on  Executors,  pt.  3,  bk.  4,  ch.  2. 

(d)  Ante,  p.  321.  (e)  Stat.  19  &  20  Vict.  c.  94. 
(/)  Stat.  55  Geo.  III.  c.  184.     See  ante,  pp.  342,  343. 

Iff)  Taylor  v.  Haygarth,  14  Sim.  8 ;  Powell  v.  Merrett,  1  Sm.  &  Giff.  381.  See  Stat. 
15  &  16  Vict.  c.  3. 

(h)  Cave  v.  Roberts,  8  Sim.  214. 

(«■)  See  Principles  of  the  Law  of  Real  Property  TT,  1st  ed.  ;  82,  2d  ed. ;  8C,  3d  and 
4tli  eds. ;  91,  5th  ed.;  97,  6th  ed. ;   100,  Vth  ed. ;  103,  8th  ed. 

1  See  ante,  p.  343,  note. 


I 


I 


OF   INTESTACY.  365 

disposition,  tends  greatly  to  simplify  the  title  to  leasehold  estates  and 
other  property  of  a  personal  nature.     It  could  be  wished,  however,  that 
the  oflBce  of  an  administrator  were  transmissible  in  the  same  manner  as 
that  of  an  executor.     In    other  respects,  the  distribution  of  personal 
estate  on  intestacy  approaches  far  more  nearly  to  the  disposition  which 
the  deceased  himself  would  probably  have  made,  than  the  descent  of  real 
property,  either  at  the  common  law  or  according  to  the  custom  of  gavel- 
kind.    A  person  possessed   only  of  small  landed  property  usually  de- 
vises it  to  trustees  for  sale,  with  full  power  to  give  receipts  to  pur- 
chasers, and  directs  the  division  of  the  produce  by  his  trustees  amongst 
bis  children  in  such  shares  as  he  may  think  just,  with  regard  to  the  pro- 
vision already  made  for  any  of  them  in  his  lifetime.     He  does  not  leave 
his  younger  children  to  beggary  in  order  that  his  whole  property  may 
devolve  to  his  eldest  son,  according  to  the  course  of  the  common  law,  a 
course  pursued,  as  the  author  believes,  in  no  other  civilized  country  in 
the  world. (^)     Neither  does  he  leave  it  to  all  his  sons  equally  in  undi- 
vided shares,  thus  inflicting  an  injustice  on  his  daughters,  and  allowing 
all  plans  for  the  improvement  of  the  lands  to  be  checked  by  one  dissen- 
tient voice,  unless  a  partition  should  be  resorted  to,  by  which  the  pro- 
perty would  be  split  up  into  parcels  too  small  for  the  convenience  of 
agriculture.     If  by  any  accident  a  man  *should  die  without    r^gggi 
making  his  will,  it  would  seem  to  be  the  province  of  an  equitable 
legislature  to  make  such  a  disposition  of  his  property  as  would,  in  ordi- 
nary circumstances,  most  nearly  correspond  with  his  intention.     It  is 
true  that  when  property  is  large,  it  is  usually  entailed  on  the  eldest  son 
and  his  issue,  subject  to  moderate  portions  for  the  younger  children. 
This  custom  of  primogeniture  is  suited  to  the  institutions  of  our  country, 
and  to  the  habits  of  the  class  to  which  large  landed  property  usually 
belongs,  and  the  author  has  no  wish  to  see  it  disturbed.    The  settlements, 
however,  by  which  these  entails  are  created  are  more  frequently  made  by 
deed  than  by  will.     They  almost  invariably  contain  provisions  for  the 
portions  of  younger  children,  varying  in  amount  with  the  value  of  the 
property;  and,  whether  made  by  deed  or  will,  they  are  usually  long  and 
intricate   in    their    nature,   providing   for    the  numerous    contingencies 
which  may   arise   under  the   peculiar    circumstances    of  each  family. 
Nothing  in  fact  can  be  more  different  than  the  devolution  of  an  estate 
to  the  eldest  son  under  a  f\vmily  settlement,  and  the  descent  on  an  intes- 
tacy to  the  eldest  son  as  heir  at  law.    In  the  one  case  he  takes  subject  to  the 
proper  claims  of  the  other  members  of  his  family ;  in  the  other  he  is 
bound  to  them  by  no  obligation  at  all.     There  seems  to  be  no  method  of 

(k)  Co.  Litt.  191  a,  n.  (1),  vi.  4. 


366  OF    PERSONAL   ESTATE    GENERALLY. 

making,  in  case  of  intestacy,  any  sort  of  disposition  of  landed  property 
which  might  be  reasonably  simple,  and  at  the  same  time  resemble  an 
ordinary  family  settlement.  If  such  a  settlement  be  not  made  by  deed, 
the  owner  has  ample  power  of  effecting  the  same  object  by  his  will.  In- 
testacy, in  fact,  rarely  happens  to  the  owner  of  large  landed  property- 
The  property  which  descends  to  heirs  under  intestacies,  though  large  in 
the  aggregate,  is  generally  small  in  individual  cases.  When  the  wishes 
of  all  cannot  be  consulted,  that  which  would  have  been  the  wish  of  the 
rHcQr"!  generality  of  intestates  ought  apparently  *to  form  the  founda- 
^  -^  tion  of  the  rule.  From  a  consideration  of  these  circumstances 
the  reader  may  perhaps  be  induced  to  think,  that  if,  in  case  of  intestacy, 
the  rules  for  the  devolution  of  real  and  personal  estate  were  identical, 
and  with  some  slight  variations  similar  to  those  which  now  exist  as  to 
personalty,  the  law  on  this  subject  would  be  rendered  both  more  simple 
and  more  just. 

The  descent  of  real  estate  to  distant  heirs,  and  the  devolution  of  per- 
sonalty to  distant  kindred,  involve  an  amount  of  learning  and  litigation, 
the  abolition  of  which  would  perhaps  be  desirable.     The  family  and  near 
relations  of  an  intestate  have  generally  claims  upon  his  bounty,  which 
ou'^ht  not  to  be  disappointed  by  the  accident  of  his  decease  without 
making  a  will.     But  distant  relatives  have  seldom  any  such  claims,  nor 
consequently  any  expectation  of  such  claims  being  fulfilled.     To  with- 
hold from  them,  therefore,  that  which  they  had  never  expected  to  enjoy, 
would  not  be  to  inflict  a  loss.     Under  the  present  system,  the  property  of 
an  intestate  who  has  no  near  relations,  is  not  unfrequently  frittered  away 
in   expensive  contests  between  opposing  claimants,  or  else  it  devolves 
unexpectedly  upon  persons  who,   for  want  of  previous  education,  are 
unable  to  make  use  of  it  with  benefit  either  to  themselves  or  to  the  com- 
munity.    In  a  country  so  heavily  burdened  as  our  own,  any  addition  to 
the  public  income,  not  having  the  pressure  of  a  tax,  would   be  a  very 
desirable   acquisition.     Such    an  addition  might,  as   it   appears  to  the 
author,  be  very  properly  made  by  the  devolution  to  the  public  of  the 
properties  of  intestates  having  none  but  distant  relatives.     The  country 
in  which  a  man  has  lived,  and  in  which  his  property  has  been  acquired, 
or  at   any  rate  protected,  has  certainly  some  claims  upon  him, — claims 
which  seem  preferable  to  those  of  the  man  who,  in  the  case  of  real  estate, 
PQ-i    founds  his  title  on  his  descent  from  the  mo8t  *remote  male  pater- 
^         -'    nal  ancestor  of  the  intestate,(Z)  or  who  claims  a  share  in  the 

(Z)  See  Principles  of  the  Law  of  Real  Property  18,  1st  ed. ;  83,  2d  ed.;  87,  3d  and 
4th  eds. ;  92,  5th  ed. ;  98,  6th  ed. ;  101,  7th  ed. ;  104,  8th  ed. 


OF    INTESTACY.  368 

personalty  because  he  chances  to  be  a  survivor  amongst  the  multitude 
standing  in  the  fifth  or  sixth  degree  of  a  series  of  kindred  which  increases, 
as  it  grows  distant,  in  geometrical  progression. (m) 

(m)  The  author's  attention  has  since  been  called  to  a  similar  proposal  in   Mill's 
Political  Economy,  vol.  1,  pp.  272,  273,  2d  ed. 


[*369]  *CHAPTER    V. 

OF   THE    MUTUAL   RIGHTS    OF    HUSBAND    AND   WIFE. 

Marriage,  being  essential  to  the  welfare  of  the  community,  and  also 
involving  important  consequences  to  the  individuals  concerned,  is  not  on 
the  one  hand  allowed  to  be  unduly  restrained,  nor  on  the  other  to  be 
brought  about  by  unfair  means. 

Amongst  the  many  striking  differences  between  the  laws  of  real  and 
personal  property,  by  which  our  legal  system  is  complicated,  will  be 
found  the  rules  relating  to  attempted  restraints  on  marriage.  Real 
estate  is  governed  by  the  rules  of  the  common  law ;  but  personal  estate, 
when  bequeathed  by  will,  has,  as  we  have  seen, (a)  long  been  subject  to 
the  jurisdiction  of  the  ecclesiastical  courts.  These  courts  have  adopted, 
with  some  modification,  the  rules  of  the  civil  law,  which  is  more  favor- 
able than  the  common  law  of  England  to  liberty  of  choice  in  marriage. 
Hence  it  follows  that  some  restrictions  on  marriage,  which  are  valid 
when  applied  to  a  gift  of  real  estate,  are  void  when  attempted  to  be 
imposed  on  a  gift  of  personal  property.  The  rules  respecting  real  and 
personal  estate  so  far  agree  that  a  condition  annexed  to  a  gift  of  either, 
that  a  person  shall  not  marry  at  all,  is  void. (6)  But  a  gift  of  either  by 
a  husband  to  his  wife  during  her  widowhood  is  valid  ;{c)  neither  would  a 
gift  of  the  income  of  property  to  a  single  person  until  marriage,  with  a 
r*^7m  ^^^^  ^^^^  °^  *marriage  appear  to  be  invalid.((i)  When,  however 
a  gift  is  made,  with  a  condition  that  it  shall  be  forfeited  if  the 
donee  marry  without  the  consent  of  certain  trustees  or  other  persons, 
the  difference  between  the  laws  of  real  and  personal  estate  becomes  con- 
spicuous. If  the  gift  be  of  real  estate,  or  of  money  charged  on  real 
estate,  it  will  cease  on  the  event  of  marriage  without  the  required  con- 

(a)  Ante,  p.  333. 

(6)  Shep.  Touch.  132  ;  Perrin  v.  Lyon,  9  East  170,  183  ;  Rishton  v.  Cobb,  9  Sim. .615  ; 
5  MyL  &  Cr.  145 ;  Morley  v.  Rennoldson,  2  Hare   570. 

(c)  Barton  v.  Barton,  2  Vern.  308. 

(d)  See  Right  d.  Compton  v.  Compton,  9  East  2G7  ;  Morley  v.  Rennoldson,  2  Hare 
570,  580  ;  Webb  v.  Grace,  2  Phil.  701  ;  Lloyd  v.  Lloyd,  2  Sim.,  N.  S.  255  ;  Heath  v.  Lewis, 
3  De  G.,  M.  &  G.  954 ;  Evans  v.  Prosser,  V.-C.  \V.,  10  Jur.  N.  S.  385. 


OF   THE   MUTUAL    RIGHTS    OF   HUSBAND   AND    WIFE. 


370 


sent.(e)  But  if  it  be  a  bequest  of  personal  property,  the  condition  is 
regarded  as  merely  in  terrorem  and  void,(/)  unless  accompanied  by  a 
bequest  over  to  some  other  person  on  the  marriage  taking  place  without 
consent  ;[g)  so  that  the  legatee  will  be  entitled  to  retain  the  legacy,  not- 
withstanding his  or  her  marriage  without  consent,  unless  on  that  event  it 
be  expressly  given  in  some  other  manner.  Such  conditions  in  bequests 
of  personalty  when  unaccompanied  by  a  gift  over,  are  called  in  terrorem, 
because,  says  Lord  Eldon,  "  they  are  supposed  to  alarm  persons,  when 
we  know  they  contain  no  terror  whatsoever. "(7iy 


(e)  Reynish  v.  Martin,  3  Atk.  330,  333.  (/)  Bellasis  v.  Ermine,  1  Cha.  Ca.  22. 

{g)  Stratton  v.  Grjmes,  2  Vern.  357  ;  Harvey  v.  Aston,  1  Atk.  361  ;  Clarke  v.  Parker, 
19  Ves.  1,  13. 
{h)  19  Ves.  13. 


1  Contracts  in  restraint  of  marriage,  are 
regarded  as  contrary  not  only  to  the  law 
and  order  of  our  nature,  but  also  as  con- 
trary to  sound  policy,  and  hence  are  ille- 
gal and  void.  "  Marriage,  no  doubt,  may 
be  made  the  subject  of  regulation  by  quali- 
fied restrictions,  under  certain  circum- 
stances, but  under  no  circumstances  what- 
ever, ought  a  general  and  entire  restriction 
of  it,  to  be  countenanced  and  sanctioned 
by  law.  .  .  .  Conditions,  also,  in  re- 
straint of  marriage,  are  odious;  and  are, 
therefore,  held  to  the  utmost  rigor  and 
strictness.  They  are  contrary  to  sound 
policy."  Middleton  v.  Rice,  6  Pa.  L.  J. 
240.  A  condition  in  restraint  of  mar- 
riage, is  void,  therefore,  when  it  is  an- 
nexed to  a  legacy,  without  a  limitation 
over;  but  if  there  is  a  limitation  over,  the 
condition  is  good :  Mcllvaine  v.  Gethen  et 
al.,  3  Whart.  583;  Hoopes  v.  Dundas,  10 
Penn.  St.  77;  Commonwealth  v.  Stauffer, 
Id.  350  ;  Middleton  v.  Rice,  6  Pa.  L.  J.  230  ; 
Bennett  v.  Robinson,  10  Watts  350  ;  Stroud 
V.  Bailey,  3,  Grant's  Cas.  310;  Hughes  v. 
Boyd,  2  Sneed  512;  Hotz's  Est.,  48  Penn. 
St.  422  ;  Otis  v.  Prince,  10  Gray  581  ;  Par- 
sons V.  Winslow,  6  Mass.  169 ;  in  the  last 
of  which  cases.  Judge  Sedgwick  remarks: 
"  It  is  a  general  rule,  that  a  condition  an- 
nexed to  a  devise  or  bequest  for  life, 
whereby  it  is  to  be  divested  by  the  mar- 
riage of  the  devisee  or  legatee,  is  to  be 
considered  as  intended  purely  in  terrorem, 


and  it  is  therefore  void.  To  this  rule  there 
is  an  exception,  that  such  condition  shall 
be  effectual,  if  the  subject  of  the  devise  or 
bequest  be  given  over,  so  as  to  create  an 
interest  in  another  person.  And  again, 
this  exception  is  restrained  and  limited. 
To  give  it  effect,  the  giving  over  to  a  third 
person,  must  be  an  express  giving  over  of 
the  particular  devise  or  legacy,  unincorpo- 
rated with  any  other  subject;  and  it  must 
also  be  immediate,  to  take  effect  at  the 
time  of  the  marriage."  But  the  doctrine 
just  stated,  will  not  apply  to  any  case  of 
conditional  limitation  ;  for,  as  was  said  in 
Middleton  v.  Rice,  "  we  must  be  careful 
not  to  confound  limitations  with  condi- 
tions, for  limitations  may  be  good,  notwith- 
standing they  are  seemingly  in  restraint 
of  marriage,  and  were  so  by  the  civil,  as 
well  as  by  the  common  law.  As,  for 
instance,  where  the  meaning  of  the  testa- 
tor is  not  to  forbid  marriage,  but  to  grant 
the  use  of  the  thing  bequeathed  until  the 
legatee  shall  marry  ;  or  where  the  prohi- 
bition of  marriage  is  notmade  conditionally 
by  this  word,  if,  .  ■  ■  but  by  other  words 
or  adverbs  of  time ;  as  when  the  testator 
willeth  that  his  daughter  or  wife  shall  be 
executrix,  or  have  the  use  of  his  goods,  so 
long  as  she  shall  remain  unmarried."  And 
see,  also,  Coppage  v.  Alexander's  Heirs,  2 
B.  Mon.  314  ;  Napier  v.  Davis  et  al.,  7  J.  J. 
Marsh.  286  ;  Hoopes  v.  Dundas,  lOPenn.  St. 
77  ;  Bennett  v.  Richardson,  10  Watts  350. 


370 


OF  PERSONAL  ESTATE  GENERALLY. 


In  order  to  prevent  marriages  from  being  unfairly  obtained,  it  is  a  rule 
in  equity  that  all  contracts  for  reward  for  procuring  marriages  (called 
marriage  brocage)  are  void.(^')  And  if  a  parent  or  guardian  should 
stipulate  for  any  private  benefit  for  the  marriage  of  his  child  or  ward, 
such  stipulation  would  be  void,  and  money  actually  paid  under  it  would 
be  decreed  to  be  refunded. (y) 


[*371] 


*Few  marriages  are  now  contracted  between  persons  possess- 
ing any  amount  of  property,  without  a  previous  settlement  of 
such  property  being  made,  in  some  stipulated  manner,  for  the  benefit  of 
the  intended  husband  and  wife  and  the  children  of  the  marriage.  As 
marriage  is  a  valuable  consideration, (^)  such  settlements  are  binding  on 
both  parties  if  of  full  age.     And  an  act  of  parliament  has  recently  been 

(i)  Hall  V.  Potter,  3  Leviiiz  411  ;  Shower's  Par.  Cas.  76. 

(/)   1  Fonblanque  on  Equity  262  ;  Smith  v.  Bruning,  2  Vern.  392. 

(k)  Ante,  p.  74. 


In  the  case,  however,  of  a  devise  of  real 
estate,  to  cease  on  the  event  of  a  subse- 
quent marriage,  it  matters  not  whether  the 
gift  be  coupled  with  a  condition  or  a  con- 
ditional limitation;  for,  in  either  ease,  it 
will  be  good  :  Phillips  v.  Medbury,  7  Conn. 
573  ;  Bailey  v.  Teackle  et  al.,  Exrs.,  Wythe 
173;  Vance  v.  Campbell's  Heirs,  1  Dana 
229;  Commonwealth  v.  StauflFer,  10  Penn. 
St.  350  ;  Bennett  v.  Robinson,  10  Watts 
350;  Arnold  v.  Gilbert,  5  Barb.  191 ;  Cor- 
nell V.  Lovett's  Exr.,  35  Penn.  St.  103; 
Vaughn  v.  Lovejoy,  34  Ala.  437  ;  and  al- 
though in  Middleton  v.  Rice,  6  Pa.  L.  J. 
230,  the  learned  judge  seemed  to  incline 
to  the  opinion,  that  a  devise  of  real  estate, 
upon  a  condition  subsequent  in  restraint  of 
marriage  generall}',  would  be  void  as  to 
the  condition,  yet  that  decision  may  be 
considered  as  overruled  by  Commonwealth 
V.  Stauffer,  and  McCullough's  Appeal,  12 
Penn.  St.  197;  in  which  last  it  was  said, 
"  The  provision  for  the  wife,  in  this  case, 
is  a  devise  of  the  profits,  and,  consequently, 
of  the  land,  to  her  for  life,  in  the  first 
instance  ;  but  coupled  with  a  condition,  or 
a  conditional  limitation,  no  matter  which, 
that  she  do  not  marry.  Whether  it  be  the 
one  or  the  other,  a  limitation  over  is  un- 
necessary, to  give  it  effect;  for  it  is  a 
familiar   principle,  that   devises  of  land, 


whether  to  a  widow  or  any  one  else,  are 
governed,  not  by  the  civil,  but  by  the 
common  law,  which  knows  nothing  of  a 
condition  in  terrorem."  In  the  case,  how- 
ever, of  Williams  et  al.  v.  Cowden,  13  Mo. 
211  ;  where  one,  by  his  will,  devised  to  his 
son,  and  to  his  daughter,  in  equal  moieties, 
a  tract  of  land,  with  the  provision,  that 
"if  his  said  daughter  should  marry  or  die," 
the  land  should  belong  exclusively  to  his 
said  son,  it  was  held  that  the  above  con- 
dition attached  to  the  estate  of  the  daugh- 
ter, is  in  restraint  of  marriage,  and  is  void. 
And  see  also,  Otis  v.  Prince,  10  Gray  581. 

"A  condition  annexed  to  the  vesting  of 
a  legacy,  requiring  the  guardian's  appro- 
bation of  the  legatee's  marriage,  is  not  in 
terrorem  only,  when  the  condition  is  con- 
firmed to  marriage  under  twenty-one,  and 
there  is  a  limitation  over:"  Collier,  Exr., 
V.  Slaughter's  Admr.,  20  Ala.  263. 

For  further  instances  of  gifts  or  devises 
during  widowhood,  see  Drury  et  al.  v. 
Grace,  2  Har.  &  Johns.  356 ;  Crosby  v. 
Wendell  et  al.,  6  Paige  Ch.  548  ;  Picot  v. 
Arraistead,  2  Ired.  Ch.  226;  Bankhead, 
Admr.,  v.  Carlisle,  Admr.,  1  Hill  Ch.  358; 
Williams  v.  Vancleave,  7  Mon.  388  ; 
Dandridge  et  al.  v.  Dorrington,  6  Call  351 ; 
Blunt  et  al.  v.  Gee  et  al..  Id.  481  ;  Taylor 
V.  Birmingham,  29  Penn.  St.  306, 


OF   THE    MUTUAL    KiUlITS    OF   nUSBAND    AND    WIFE.  371 

passed,(Z)  enabling  every  infant  not  under  twenty  if  a  male,  and  not 
under  seventeen  if  a  female,  to  settle  his  or  her  property,  whether  real 
or  personal,  upon  marriage,  provided  the  sanction  of  the  Court  of  Chan- 
cery be  obtained.  But  if  the  settlement  be  not  made  under  the  pro- 
visions of  this  act,  and  either  husband  or  wife  should  be  under  age,  the 
settlement  will  not  be  binding  on  him  or  her,(ryt)  although  the  other 
party,  if  of  full  age,  will  be  bound  by  it.(w)  And  if  both  of  them  should 
be  under  age,  neither  of  them  will  be  bound  by  it.  The  circumstance  of 
the  settlement  of  an  infant's  personal  property  being  fair  and  reasonable, 
and  made  with  the  approbation  of  his  or  her  guardians,  was  formerly 
considered  as  giving  it  validity  ;{o)  but  this  circumstance  seems  now  to 
have  no  weight.^  It  has,  however,  been  decided  that  a  competent  legal 
jointured^)  settled  on  the  intended  wife,  then  an  infant,  with  the  con- 
currence of  her  guardians,  in  lieu  of  her  right  to  dower  out  of  her 
husband's  freehold  lands,  and  in  lieu  of  her  distributive  share  of  his  per- 
sonal estate  in  the  event  of  his  intestacy,  was  sufficient  to  deprive  her 
both  of  her  *dower  and  of  her  distributive  share  in  her  bus-  r^oncy-i 
band's  personalty.(5')  When  the  intended  wife  only  is  an  infant, 
a  settlement  of  her  personal  estate  in  possession  is  valid,  on  account  of 
the  interest  which,  as  we  shall  see,  the  law  gives  to  the  husband  in  such 
personal  estate.  The  settlement  in  such  a  case  is  in.  fact  not  made  by 
the  wife,  but  by  the  husband,  who  being  adult,  is  bound  by  its  provisions 
to  the  extent  of  the  interest  which  he  would  have  taken  had  no  settle- 
ment been  made.(r) 

If  no  settlement  be  made,  the  principles  which  govern  the  rights  of 
husband  and  wife  to  personal  property  must  still  be  traced  to  the  cir- 
cumstances of  ancient  rather  than  of  modern  times.     In  ancient  times 

(I)  Stat.  18  &  19  Vict.  c.  43  ;  Re  Dalton,  6  De  G.,  M.  &  G.  201,  extended  to  the  Court 
of  Chancery  in  Ireland,  by  stat.  23  &  24  Vict.  c.  83. 

(m)  Ellison  v.  Elwin,  13  Sim.  309;  Le  Vasseur  v.  Scratton,  14  Sim.  IIG. 

(«)  Durnford  v.  Lane,  1  Bro.  C.  C.  106;  Milner  v.  Lord  Harewood,  18  Ves.  259. 

(o)   2  Roper's  Husband  and  Wife  26. 

(p)  See  Principles  of  the  Law  of  Real  Property  1T4,  1st  ed. ;  184,  2d  ed. ;  191,  3d 
ed. ;  192  4th  ed. ;  201,  5th  ed. ;  211,  6th  ed. ;  216,  7th  ed. ;  225,  8th  ed. 

(q)  Earl  of  Buckingham  v.  Drury,  3  Brown's  Par.  Cas.  492. 

(r)  Trollope  v.  Linton,  1  Sim.  &  Stu.  477,  487. 

1  The  beneficial  contracts  of  infants,  are  446 ;  Proctor  v.  Sears,  4  Allen  95 ;  McCor- 

voidable  only,  and  may  be  ratified  by  them  mic   v.   Leggett,   8    Jones   L.  425;  Henry 

after    arriving    at    maturity,    by    express  v.  Root,  33  N.   Y.    526 ;  but  mere  acquies- 

agreement,  or  by  positive  acts,  equivalent  cence,  without  anything  else,  is  not  gene- 

thereto  :  N.  H.  M.  F.  Ins.  Co.   v.  Noyes,  32  rally    sufficient    evidence    of    affirmance  : 

N.  H.  345;  Manning  v.  Johnson,  26  Ala.  Irvine  v.  Irvine,  9  Wall.  U.  S.  617. 


372  OF    PERSONAL   ESTATE   GENERALLY. 

landed  property  was  by  far  the  most  important ;  and  the  wife  was  ac- 
cordingly entitled  to  a  provision  out  of  the  lands  of  her  husband,  in  the 
event  of  her  surviving  him,  which  no  alienation  that  he  could  make,  nor 
any  debts  which  he  might  incur,  were  able  to  set  aside.(«)  But  in  those 
days  personal  property  was  of  too  insignificant  a  value  to  be  the  subject 
of  any  such  provision.  And  if  a  woman  now  marry  without  a  settle- 
ment, she  has  still  no  claim  on  her  husband's  personal  estate,  however 
large,  unless  he  should  happen  to  die  intestate,  in  which  case,  as  we  have 
already  mentioned,  she  is  entitled  to  a  third  or  a  half  of  what  he  may 
leave,  according  as  he  may  or  may  not  leave  issue  surviving  him.  A 
husband,  on  the  other  hand,  was  in  ancient  times  considered  absolutely 
entitled  to  such  personal  chattels  as  his  wife  might  possess.  In  this 
respect  the  law  was  then  both  simple  and  sufficient.  By  the  act  of  mar- 
riage, the  wife  placed  herself  under  the  coverture  or  protection  of  her 
r*Q'"Qi  husband.  She  became  in  *the  law  French  of  those  days  a  feme 
L  ^  covert.  Thenceforth  all  demands  to  which  she  was  personally 
liable  were  to  be  answered  by  her  natural  protector.  The  wife  was  con- 
sidered as  merged  in  her  husband,  and  both  were  regarded  as  but  one 
person. (^)  So  long  therefore  as  the  coverture  continued,  that  is,  during 
the  joint  lives  of  the  husband  and  wife,  the  husband  was  absolutely  en- 
titled to  all  personal  property  which  his  wife  might  acquire,  and  was  also 
liable  to  the  payment  of  all  debts  which  she  might  previously  have  in- 
curred.^    These  simple  principles  still  pervade  the  law  relating  to  the 

(«)  See  Principles  of  the  Law  of  Real  Property  172,  1st  ed.  ;  182,  2d  ed.  ;  189,  3d 
ed.  ;  190,  4th  ed.;  199,  5th  ed  ;  209,  6th  ed.;   213,  7th  ed.  ;  223,8th  ed. 

(t)  Principles  of  the  Law  of  Real  Property  164,  1st  ed.  ;  176,  2d  ed.  ;  183,  3d  ed.  ; 
184,  4th  ed. ;   190,  5th  ed.  ;  200,  6th  ed.  ;  207,  7th  ed.  ;  214,  8th  ed. 

^  For  the  statutes  of  the  several  states  shall  accrue  to  any  married  woman  during 
on  this  subject,  see  generally,  the  titles  coverture  by  will,  descent,  deed  of  convey- 
Husband  and  Wife,  Abatement,  Alimony,  ance  or  otherwise,  shall  be  owned,  used 
Conveyance,  Curtesy,  Divorce,  Dower,  and  enjoyed  by  such  married  woman  as  her 
Feme  Covert,  Jointure,  Marriage,  Married  own  separate  property  ;  and  the  said  pro- 
Women,  Widow,  &c.  &c.,  as  contained  in  perty,  whether  owned  by  her  before  mar- 
the  respective  Digests.  riage,  or  which  shall  accrue  to  her  after- 

By  the  sixth  section   of  the  Act   of  the  wards,   shall   not  be  subject   to  levy  and 

Legislature  of  Pennsylvania  of  the  eleventh  execution  for  the  debts  or  liabilities  of  her 

of  April,  1848,  it  is  provided  that  "Every  husband,  nor  shall  such  property  be  sold, 

speeies     and     description      of     property,  conveyed,   mortgaged,    transferred    or    in 

whether    consisting    of  real,   personal    or  any  manner  encumbered  by  her  husband, 

mixed,  which  may  be  owned  by  or  belong  without  her  written  consent  first  had  and 

to  any  single  woman,  shall  continue  to  be  obtained,  and  duly  acknowledged     .     .     . 

the  property  of  such  woman,  as  fully  after  that  such  consent  was  not  the  result  of 

her  marriage  as  before  ;  and  all  such  pro-  coercion  on  the  part  of  her  said  husband, 

perty,  of  whatever  name  or  kind,   which  but  that  the  same  was  voluntarily  given 


1 


OF   THE    MUTUAL   RIGHTS    OP   HUSBAND    AND    WIFE.  373 

husband's  interest  in  his  wife's  personal  estate ;  although  the  several 
different  species  of  personal  estate  to  which  modern  civilization  has  given 
rise,  conjoined  with  the  rules  of  equitable  administration  laid  down  by 
the  Court  of  Chancery,  have  given  to  this  branch  of  law  a  perplexity 
unknown  to  the  simple,  though  somewhat  harsh,  rules  of  our  ancestors. 

In  the  first  place,  then,  personal  property  of  the  ancient  kind,  namely, 
chattels,  personal  or  movable  goods,  belonging  to  the  wife  at  the  time 
of  her  marriage,  or  given  to  her  afterwards,  become  the  absolute  pro- 
perty of  her  husband  in  the  same  manner  precisely  as  if  they  had  been 
originally  his  own,  or  had  been  subsequently  given  to  him.(w)  He  may 
dispose  of  them  as  he  pleases  in  his  lifetime  or  by  his  will ;  they  will  be 
subject  to  his  debts;  and  if  he  should  die  intestate,  the  wife  will  have 
no  further  claim  to  them  than  to  any  other  of  his  effects.  So  impera- 
tive is  this  rule,  that  if  chattels  personal  be  given  to  a  married  woman 
jointly  with  a  stranger,  the  law  will  instantly  sever  the  jointure,  ^^07  ^-i 
*and  make  the  husband  and  the  stranger  tenants  in  common. (z')    L         J 

The  only  exceptions  to  this  sweeping  rule  are  the  wife's  parapher- 
nalia^ so  called  from  the  Greek  napa<pepvf},  being  things  to  which  the 
wife  is  entitled  over  and  above  her  dower.  The  wife's  paraphernalia 
consist  of  her  apparel  and  ornaments  suitable  to  her  rank  and  degree  ;{x) 
and  gifts  made  by  the  husband  to  his  wife  of  jewels  or  trinkets  to  be 
worn  by  her  as  ornaments  are  considered  as  part  of  her  parapher- 
nalia.(?/)  These  articles,  equally  with  the  wife's  other  personal  chattels, 
may  be  disposed  of  by  the  husband  in  his  lifetime,(3)  and,  with  the  ex- 
ception of  the  wife's  necessary  clothing,  are  also  liable  to  his  debts. (a) 
The  wife  also  herself  has  no  power  to  dispose  of  them  by  gift  or  will 
during  her  husband's  lifetime. (5)  "But  paraphernalia  differ  from  the 
wife's  other  personal  chattels  in  this  respect,  that  the  husband,  though 
he  may  dispose  of  them  in  his  lifetime,  has  no  power  to  bequeath  them 
away  from  his  wife  by  his  will.(c)     Gifts  of  jewels  ©r  trinkets  made  to 

(m)  Co.  Litt.  300  a  ;  351  b  ;  Bac.  Abr.  tit.  Baron  and  Feme  (C.)  3  ;  1  Rop.  Husband 
and  Wife  169. 

(v)  Bracebridge  v.  Cook,  Plowden  411.     See  Re  Barten's  Will,  10  Hare  12. 

(z)  2  Bl.  Co-m.  436  ;  2  Rop.  Husband  and  Wife  140  ;  11  Tin.  Abr.  tit.  Executors  (Z.  5). 

(y)  Graham  v.  Londonderry,  3  Atk.  394;  Jervoise  v.  Jervoise,  17  Beav.  5C6. 

{2)  Ibid.  ;  2  Rop.  Husband  and  Wife  141. 

(a)  2  BL  Com.  436;  Ridout  v.  Earl  of  Plymouth,  2  Atk.  104;  Lord  Townsend  v. 
Wyndam,  2  Ves.  sen.  1,  7. 

(6)  2  Rop.  Husband  and  Wife  141. 

(c)  Tipping  V.  Tipping,  1  P.  Wms.  730  ;  Northey  v.  Nojthey,  2  Atk.  77. 

and  of  her  own  free  will.     Provided,  That     marriage:"     .      .      .      Purd.  Dig.    (1861), 
her  said   husband  shall   not  be  liable  for     p.  699,  sec.  11. 
the  debts  of  the   wife   contracted  before 


374  OF  PERSONAL  ESTATE  GENERALLY. 

the  Avifc  by  a  relative  or  friend,  either  upon  or  after  her  marriage,  will 
generally  be  considered  in  ec^uity  as  intended  for  lier  separate  use,  [d)  in 
which  case  they  will  not  be  reckoned  amongst  her  paraphernalia,  but 
will,  as  we  shall  hereafter  see,  be  exempt  from  the  *control  and 
[*375J  ^^i^^g  ^^  j^^j.  husband,  and  may  be  disposed  of  by  the  wife  in 
the  same  manner  as  if  she  were  unmarried. 

"With  regard  to  such  of  the  wife's  personal  estate  as  is  not  in  posses- 
sion, but  for  which  she  has  only  a  right  to  sue,  the  rights  of  the  husband 
are  different,  according  as  the  proceedings  against  the  persons  liable  to 
be  sued  must  be  taken  in  a  court  of  law  or  of  equity.  Property  of  this 
nature,  as  we  have  already  seen,(e)  is  termed  in  law  French  clioses  in 
action ,  such  as  may  be  recovered  by  action  at  law  are  called  legal  choses 
in  action,  and  such  as  may  be  recovered  by  suit  in  equity  are  called 
equitable  choses  in  action.  With  regard  to  each  of  them,  the  rights  of 
the  husband  are  of  a  diiferent  kind,  although  in  each  the  same  rule 
applies,  that  if  he  can  get  them  into  his  possession  during  the  coverture 
he  has  a  right  to  keep  them,  otherwise  they  will  belong  to  his  wife.(/) 

Legal  choses  in  action  consist  principally  of  debts  due  to  the  wife,  and 
secured  or  not  by  bond,  or  by  bills  or  promissory  notes.  Of  all  these  the 
husband  has  a  right  to  receive  payment,  and  should  payment  be  refused  him, 
he  may  sue  for  them  in  the  joint  names  of  himself  and  his  wife  •,{g)  but  bills 
and  notes  of  the  wife  payable  to  order,  being  transferable  by  endorsement, 
may  be  endorsed  by  the  husband  alone,(A)  or  sued  for  in  his  own 
name.(«y  All  such  legal  choses  in  action  as  accrued  to  the  wife  after 
her  marriage  may  be  sued  *for  by  the  husband,  either  in  the 
"-  -'  joint  names  of  himself  and  his  wife,  or  in  his  own  name  only  ;{k) 
but  if  the  wife  has  really  no  interest,  he  cannot  of  course  make  use  of 
her  name.(?)  If  the  husband  should  sue  in  the  joint  names  of  himself 
and  his  wife,  the  benefit  of  the  judgment  of  the  court  will  in  case  of  his  de- 

{d)  Graham  v.  Londonderry,  3  Atk.  394  ;  2  Kop.  Husband  and  Wife  143  ;^05^,  p.  384. 
(e)  Ante,  p.  4. 

(/)  2  Bl.  Com.  434  ;   1  Williams  on  Executors,  pt.  2,  bk.  3,  ch.  1,  s.  3. 
{g)   1   Rop.  Husb.  and  Wife,  213,  214;   Sherrington   v.  Yates,  12  M.  &  W.  855.     In 
this  case  the  note  was  not  payable  to  order,  and  therefore  not  negotiable. 
(A)  Mason  v.  Morgan,  2  Ad.  &  E.  30  (E.  C.  L.  R  vol.  29). 
(0  Burrough  v.  Moss,  10  B.  &  C.  558  (E.  C.  L.  R.  vol.  21). 
{k)   1  Rop.  Ilusb.  and  Wife  213.  {I)  Abbot  v.  Blofield,  Cro.  Jac.  G44. 

1  Evans  v.  Secrest,  3  Ind.  .545  ;  Holland  31  Penn.  St.  228  ;  Roberts  v.  Place,  18  N. 
V.  Moody,  12  Id.  170  ;  Young  v.  Ward,  21  H.  183  ;  King  v.  Gottschalk,  21  Iowa  512. 
111.  223;  Tritt's  Admr.  v.  Colvvell's  Admr., 


OF   THE   MUTUAL   RIGHTS   OF    HUSBAND    AND   WIFE.  376 

cease  survive  to  her  ',{m)  but  if  he  sue  in  his  own  name,  the  benefit  of  the 
judgment  will  form  part  of  his  own  personalty.     If,  however,  the  husband 
should  not  have  received  the  money  in  his  lifetime,  or  should  not  have 
obtained  judgment  for  it  in  his  own  name,  his  wife  will,  on  his  decease, 
be  entitled  by  survivorship  to  the  chose  in  action  so  remaining  still  un- 
reduced into  possession  •,{n)  and  bills  and  notes  form  no  exception  to  this 
rule.(o)     But,  if  the  wife  should  die  before  her  husband,  these  choses  in 
action,  still  remaining  unreduced,  will  form  part  of  her  personal  estate ; 
and  her  husband  must  take  out  administration  to  her  effects  before  he 
can  proceed  to  recover  them  :{p)  when  recovered,  they  will,  with  the  rest 
of  her  personalty,  belong  to  himself  absolutely,  after  payment  of  her 
debts.(^)     The  only  exception  to  this  rule  occurs  in  the  case  of  the  hus- 
band being  entitled,  in  right  of  his  wife,  to  "  any  estate  in  fee  simple,  fee 
tail,  or  for  term  of  life,  of  or  in  any  rents  or  fee-farms ;"  in  which  case 
the  husband,  after  the  death  of  his  wife,  is  empowered  by  statute(r)  to 
recover  the   arrears  accrued  to  his  wife  before-  marriage   *by    r^Q"-?-] 
action  of  debt  or  distress.     But  this  provision  does  not  apply  to 
the  rents  reserved  upon  leases  for  years.(s) 

Equitable  choses  in  action  consist  principally  of  legacies,  residuary 
personal  estate  of  testators,  and  money  in  the  funds.  But  all  kinds  of 
property,  including,  as  is  now  decided,  both  freehold  estates(^)  and  chat- 
tels real,(w)  vested  in  trustees,  who  are  answerable  only  to  the  Court  of 
Chancery,  are  subject  to  a  rule  of  equity,  by  which  equitable  choses  in 
action  are  mainly  distinguished  from  such  as  are  merely  legal.  This 
rule  is  as  follows :  that  the  Court  of  Chancery  will  not  assist,  nor,  if  the 
wife  should  dissent,  will  it  allow,  the  husband  to  recover  or  receive  any 
property  of  his  wife  recoverable  only  in  that  court,  without  his  settling  a 

(m)  1  Vern.  396  ;  1  Rop.  Husb.  and  Wife  212. 

(n)  Co.  Litt.  351  b. 

(o)  Richards  v.  Richards,  2  B.  &  Ad.  44T  (E.  C.  L.  R.  vol.  22);  Gaters  v.  Madeley,  G 
M.  &  W.  423 ;  Hart  v.  Stephens,  6  Q.  B.  937  (E.  C.  L.  R.  vol.  51)  ;  Scarpellini  v.  Atche- 
son,  7  Q.  B.  864  (E.  C.  L.  R.  vol.  53). 

{p)  1  Rop.  Husb.  and  Wife  205.  See  Betts  v.  Kimpton,  2  B.  &  Ad.  273  (E.  C.  L.  R. 
vol.  22). 

(q)  Stat.  29  Car.  II.  c.  3,  s.  25,  ante,  p.  361. 

(r)  Stat.  32  Hen.  VIII.  c.  37,  s.  3. 

(s)  Prescott  v.  Boucher;  3  B.  &  Ad.  849  (E.  C.  L.  R.  vol.  23). 

(t)  Sturgis  V.  Champneys,  5  Mjl.  &  Cr.  97  ;  Wortham  v.  Pemberton,  1  De  G.  &  Sm. 
644  ;  Gleaves  v.  Paine,  1  De  G.,  J.  &  Sm.  87.  Sec,  however,  Sugd.  V.  &  P.  450,  13th 
ed.  ;  560,  14th  ed. 

(w)  Hanson  v.  Keating,  4  Hare  1. 
30 


377  OF   PERSONAL   ESTATE   GENERALLY. 

due  proportion  of  such  property  on  his  wife  and  children, (a;)  The  right 
of  the  wife  to  such  a  provision  is  termed  the  wife's  equity  for  a  settlc- 
ment.{i/y  In  fixing  the  proportion  to  be  settled,  a  prior  settlement  will 
always  be  taken  into  account.(2)  But  where  no  settlement  has  previously 
been  made,  the  proportion  required  to  be  settled  on  the  wife  is  most 
frequently  one-half  ;(a)  and  sometimes  the  court  has  gone  so  far  as  to 
r*^7S1  require  a  settlement  of  the  whole  fund.(6)  *Although  the  chil- 
dren are  usually  inserted  in  the  settlement,  yet  the  right  is  per- 
sonal to  the  wife,  and  may  be  waived  by  her;(c?)  nor  will  it  survive  to 
the  children  in  case  of  her  decease  before  the  court  has  made  its  de- 
cree ;{d)  but  if  she  die  after  the  decree,  it  will  still  be  carried  into  effect 
for  the  benefit  of  the  children.(e)  This  rule  of  the  Court  of  Chancery  is 
founded  on  one  of  the  maxims  of  equity,  that  he  who  would  have  equity 
must  do  what  is  equitable ;(/)  it  cannot,  therefore,  be  enforced  until  the 
time  arrives  when  the  fund  becomes  payable  to  the  husband. (^)  If, 
however,  as  most  frequently  happens,  the  husband  can  obtain  from  the 
executor  or  trustee  of  the  fund  in  question  payment  of  it  to  himself, 
without  the  assistance  of  the  court,  he  has  a  right  to  do  so,  and  in  this 
case  the  wife's  equity  is  at  once  excluded ;  and  if  the  time  of  payment 
has  arrived  the  executor  or  trustee  may  safely  pay  over  the  fund  to  the 
husband,  unless  the  wife  shall  have  already  filed  her  bill  in  Chancery  to 
enforce  her  right  to  a  settlement  ;(A)  and  the  receipt  of  the  fund  by  the 

(z)  It  was  formerly  held  that  the  wife's  equity  to  a  settlement  did  not  extend  to 
sums  under  200Z. ;  Foden  v.  Finney,  4  Russ.  428  ;  but  this  distinction  is  now  abolished  : 
In  re  Cutler,  14  Beav.  220;  Re  Kincaid,  I  Drew.  326. 

(y)  1  Rop.  Husb.  and  Wife  256  et  seq. 

[z)  March  v.  Head,  3  Atk.  720;  Lady  Elibank  v.  Montolieu,  5  Ves.  737  ;  Erskine's 
Trust,  1  Kay  &  John.  302  ;  Spirett  v.  Willows,  L.  C.  12  Jur.  N.  S.  538  ;  1  Law  Rep.  Ch. 
Ap.  520. 

(a)  1  Rop.  Husb.  and  Wife  260  ;  Archer  v.  Gardiner,  1  C.  P.  Coop.  430. 

(6)  Brett  v.  Greenwell,  3  You.  &  Coll.  230 ;  Gardiner  v.  Marshall,  14  Sim.  575 ;  Scott 
V.  Spashett,  3  Macn.  &  G.  599  :  Dunkley  v.  Dunkley,  L.  C.  16  Jur.  767  ;  2  De  G.,  M.  & 
G.  390 ;  Marshall  v.  Fowler,  16  Beav.  249 ;  Gent  v.  Harris,  10  Hare  383 ;  Re  Welchman, 
1  GifiF.  31. 

(c)  Murray  v.  Lord  Elibank,  13  Ves.  6.  But  the  wife  having  once  insisted  on  her  right 
cannot  afterwards  waive  it  :  Barker  v.  Lea,  6  Mad.  630  ;  Whittem  v.  Sawyer,  1  Beav.  593. 

(rf)  De  la  Garde  v.  Lempriere,  6  Beav.  344;  overruling  Steinmetz  v.  Halthin,  1  Glyn 
&  Jam.  64 ;  Baker  v.  Bayldon,  8  Hare  210  ;  Wallace  v.  Auldjo,  V.-C.  K.,  9  Jur.  N.  S. 
687  ;  2  Drew.  &  Sm.  216,  affirmed  by  Lords  Jus.  11  W.  R.  972  ;  1  De  G.,  J.  &  S.  643. 

(e)  Groves  v.  Clarke,  1  Keen  132  ;  8.  c.  Groves  v.  Perkins,  6  Sim.  584. 

(/)  2  P.  Wms.  641.  {g)  Osborn  v.  Morgan,  9  Hare  432. 

\h)  1  Rop.  Husb.  &  Wife,  273  ;  Murray  v.  Lord  Elibank,  10  Ves.  90. 

1  Poindexter  v.  Jeffries,  15  Gratt.  363;  Thrcadgill,  3  Sneed  577  ;  Moore  v.  Moore, 
Lowe  V.  Cody,  29  Geo.  117;  Smith  v.  14  B.  Mon.  259.  See  also  Hill  on  Trus- 
Long,    1    Mete.    (Ky.)    486  ;    Coppedge  v.     tees,  pages  405,  and  408  to  415,  and  notes. 


OF   THE   MUTUAL   RIGHTS    OF   HUSBAND    AND    WIFE.  378 

husband,  when  it  has  thus  become  payable,  is  also  an  effectual  bar  to  the 
wife's  right  by  survivorship. (zy  * 

*If  the  husband,  instead  of  obtaining  payment  of  the  fund,  r+q-rq-i 
should  assign  it  to  a  third  person, (A:)  or  if  he  should  become 
bankrupt,(Z)  his  assignee  will  take  subject  to  the  wife's  equity  for  a 
settlement,  in  the  same  manner  as  if  no  assignment  had  been  made. 
But  if  the  interest  to  which  the  wife  is  entitled  consists  of  an  equitable 
estate  for  her  life  only,  an  assignee  from  the  husband  of  such  life  inter- 
est for  valuable  consideration  will  be  entitled  to  hold  it  as  against  the 
wife's  equity  for  a  settlement  ;{m)  although  she  would  be  entitled  to  a 
settlement  as  against  his  assignees,  or  now  his  creditors'  trustee,  in 
bankruptcy.(w)  If  the  husband  should  die  before  the  assignee  has  got 
possession  of  the  fund,  leaving  his  wife  surviving,  the  wife's  right  by 
survivorship  will  prevail  over  the  title  of  the  assignee,  whether  in  bank- 
ruptcy (o)  or  for  valuable  consideration. (p) 

A  recent  act  of  parliament(g')  enables  every  married  woman,  with  the 
concurrence  of  her  husband,  by  deed  to  dispose  of -every  future  or  rever- 
sionary interest,  whether  vested  or  contingent,  of  such  married  woman, 
or  her  husband  in  her  right,  in  any  personal  estate  to  which  she  shall  be 
entitled  under  any  instrument  (except  her  marriage  settlement)  iiiade 
after  the  Slst  December,  1857  ;  also  to  release  or  extinguish  any  power 
in  regard  to  any  such  personal  estate ;  and  also  to  *release  and  r*QgA-i 
extinguish  her  equity  to  a  settlement  out  of  her  personal  estate 
in  possession  under  any  such  instrument  as  aforesaid.     But  every  such 

(t)  1  Rop.  Husb.  and  Wife,  220  ;  Rees  v.  Keith,  11  Sim.  383 ;  Cunningham  v.  Antro- 
bus,  16  Sim.  436. 

(k)  1  Rop.  Husband  and  Wife,  271 ;  Malcom  v.  Charlesworth,  1  Keen  73,  74  ;  Scott 
V.  Spashett,  3  Macn.  &  G.  599 ;  Carter  v.  Taggart,  5  De  G.  &  Sm.  49;  1  De  G.,  M.  &  G. 
286,     See  Ward  v.  Yates,  1  Drew.  &  S.  80. 

(l)  1  Rop.  Husband  and  Wife,  268. 

(m)  Elliott  V.  Cordell,  5  Mad.  149;  Stanton  v.  Hall,  2  Russ.  &  My.  175,  182  ;  Tidd  v. 
Lister,  10  Hare  140,  154;  3  De  G.,  M.  &  G.  857  ;  Re  DufiFy's  Trust,  28  Beav.  386. 

(n)  Wright  v.  Morley,  11  Ves.  17.  (o)  Pierce  v.  Thornley,  2  Sim.  167. 

(p)  Hutchings  v.  Smith,  9  Sim.  137  ;  Ellison  v.  Elwin,  13  Sim.  309  ;  Ashby  v.  Ashby, 
1  Coll.  553  ;  Le  Vasseur  v.  Scratton,  14  Sim.  116 ;  Michelmore  v.  Mudge,  2  GiflF.  183. 

(q)  Stat.  20  &  21  Vict.  c.  57. 

1  It  has  been  decided  in  Pennsylvania,  turned,  or  expended  for  her  use,  at  her 

that  since  the  Act  of  1848,  when  a  hus-  request,  or  that  he  received  it  as  a  gift 

band  receives  his  wife's  money,  the  legal  from  his  wife :  Young's  Est.,  65  Penn.  St. 

presumption  is  that  he  receives  it  solely  101;  Johnston  v.  Johnston,  31   Id.  450; 

for  her  use,  and  consequently   must   ac-  Geabill  v.  Moyer,  45  Id.  530. 
count  for  it,  by  showing  that  it  was  re- 


380  OF   PERSONAL    ESTATE    GENERALLY. 

disposition  must  be  separately  acknowledged  by  her  in  the  manner  re- 
quired by  the  act  for  the  abolition  of  fines  and  recoveries. (r)  And 
nothing  therein  contained  is  to  extend  to  any  reversionary  interest,  to 
•which  she  shall  become  entitled  under  any  instrument  by  which  she  shall 
be  restrained  from  alienating  or  aflfecting  the  same. 

If  the  wife  should  be  entitled  to  any  chose  in  action,  whether  legal  or 
equitable,  of  a  reversionary  nature,  not  within  the  above-mentioned  act, 
the  effect  of  an  assignment  by  the  husband  will  be  diflferent  under  differ- 
ent circumstances.  The  wife,  of  course,  cannot  assign ;  for  by  the  act 
of  marriage  she  deprives  herself  of  all  power  so  to  do ;  and  the  husband 
can  only  assign  to  another  the  interest  to  which  he  may  be  entitled  him- 
self. Suppose  therefore  that  the  wife  is  entitled,  on  the  death  of  A.,  a 
person  now  living,  to  a  sum  of  stock  standing  in  the  names  of  trustees, 
and  that  her  husband  should  make  an  assignment  of  this  reversionary 
interest  to  B.,  a  purchaser ;  the  benefit  which  will  accrue  to  B.  by  virtue 
of  this  assignment  will  vary,  according  as  the  husband,  the  wife,  or  A., 
the  tenant  for  life,  may  happen  to  die  first.  If  the  husband  should  die 
first,  B.  will. lose  his  purchase;  for  the  wife,  having  survived  her  hus- 
band, will  now  on  the  death  of  A.  be  entitled  to  the  stock,  which  has 
never  been  reduced  into  the  possession  of  her  husband,  or  of  B.,  his 
assignee.(s)  If  A.  should  die  first,  B.  may  then  obtain  a  transfer  of  the 
stock,  if  the  trustees  choose  to  transfer  it  to  him,  and  if  the  wife  should 
P^oo-in  not  have  filed  a  bill  to  enforce  her  equity  to  a  *settlement.(^) 
But  if  the  trustees  should  refuse  to  transfer  without  the  direction 
of  the  Court  of  Chancery,  or  if  the  wife  should  insist  upon  her  right, 
then  B.  will,  as  we  have  seen,(M)  most  probably  obtain  only  half  of  the 
fund  for  his  own  benefit,  and  will  be  obliged  to  settle  the  other  half  on 
the  wife  and  children.  If,  however,  the  wife  should  die  first,  then  this 
chose  in  action,  remaining  unreduced  into  possession,  will,  like  a  legal 
chose  in  action,  under  the  same  circumstances, (a;)  remain  part  of  the 
wife's  personal  estate ;  and  the  husband,  on  taking  out  administration  to 
his  wife,  will  be  bound  by  his  previous  assignment.  B.  will  accordingly 
in  this  single  event  obtain  the  whole  fund,  subject  however  to  the  wife's 
debts,  if  any.  It  was  once  thought  that  if  an  assignment  could  be  ob- 
tained from  the  tenant  for  life,  of  his  life  interest  in  a  fund  circumstanced 

(r)  Stat.  3  &  4  Will.  IV.  c.  14.     See  Principles   of  the  Law  of  Real  Property   189, 
4th  ed. ;  19Y,  5th  ed. ;  201,  6th  ed. ;  21 2,  7th  ed.  ;  222,  8th  ed. 
(s)  Purdew  v.  Jackson,  1  Russ.  1  ;  Honncr  v.  Morton,  3  Russ.  65. 
(/)  Greedy  v.  Lavender,  13  Beav.  G2.  (w)  A7ite,  p.  377. 

[x)  Ante,  p.  376. 


OF   THE   MUTUAL   RIGHTS    OF    HUSBAND    AND   WIFE.  381 

as  above  mentioned,  to  the  married  woman  entitled  to  the  reversion,  she 
would  be  in  the  same  situation  as  if  the  whole  fund  had  been  originally 
held  in  trust  for  her  absolutely ;  and  that  after  such  an  assignment,  the 
whole  fund  might  therefore  be  transferred  to  the  husband.(?/)  But  it  is 
contrary  to  the  general  principle  of  equity  to  allow  the  rights  of  parties 
to  be  affected  by  any  merger  or  extinguishment  of  interests ;  and  the 
doctrine  in  question  has  been  overruled. (2) 

The  same  principles  which  apply  to  the  assignment  by  a  husband  of 
his  wife's  reversionary  interest  in  a  chose  in  action,  apply  also  to  his 
release,  which  will  be  as  little  binding  or  her  as  his  assignment,  in  case  of 
her  *being  the  survivor.(a)  If,  however,  the  reversionary  chose  in  r^ggo-i 
action  of  the  wife  consist  of  money  charged  on  real  estate,  the 
wife's  interest  can  either  be  released  or  assigned  by  a  deed  acknow- 
ledo-ed  by  her,  with  the  concurrence  of  her  husband,  under  the  provisions 
of  the  act  for  the  abolition  of  fines  and  recoveries. (6)  The  contrary  was 
decided  in  a  recent  case,(c)  which  may  now  be  considered  as  overruled.((^) 

The  same  principle  of  the  merger  of  the  wife  in  the  husband,  which  gives 
him  such  important  rights  in  her  personal  estate,  renders  him  answerable  for 
all  the  debts  and  liabilities  of  his  wife  contracted  previously  to  her  mar- 
riage.(e)  But  if  the  judgment  for  any  debt  be  not  recovered  during  the 
continuance  of  the  marriage,  the  liability  ceases,  except  to  the  extent  of 
the  assets  to  which  the  husband  may  be  entitled  as  his  wife's  administra- 
tor ;(/)  and  if  the  wife  survive,  she  will  again  become  solely  liable.  The 
husband  is  also  bound  during  the  coverture  to  supply  his  wife  with  neces- 
saries suitable  to  her  station  in  life.  She  is  therefore,  whilst  living  with 
him,  considered  as  his  agent  for  the  purchase  of  any  such  necessary 
articles  with  which  he  may  not  have  supplied  her.(^)     And  even  if  the 

(y)  Creed  v.  Perry,  14  Sim.  592;  Hall  w.  Hugonin,  14  Sim.  595;  Bishopp  v.  Cole- 
brook,  V.-C.  E.,  11  Jur.  793. 

(z)  Whittle  V.  Henning,  11  Beav.  222  ;  affirmed,  2  Phil.  731  ;  Haiichett  v.  Briscoe,  22 
Beav.  496. 

(a)  Rogers  v.  Acaster,  14  Beav.*445;  Harley  v.  Harley,  10  Hare  325. 

(b)  Stat.  3  &  4  Will.  IV.  c.  74.  See  Principles  of  the  Law  of  Real  Property  189, 
4th  ed.;  197,  5th  ed  ed.;  207,  6th  ed. ;  212,  7th  ed. ;  222,  8th  ed. 

(c)  Hobby  v.  Allen,  V.-C.  Knight  Bruce,  15  Jur.  835;  s.  c.  nom.  Hobby  v.  Collins,  4 
De  G.  &  S.  289. 

(d)  Sugd.  Real  Property  Statutes,  p.  240,  1st  ed. ;  p.  233,  2d  ed. ;  Briggs  v.  Chamber- 
lain, V.-C.  Wood,  18  Jur.  56;  s.  c.  11  Hare  69;  Tuer  v.  Turner,  20  Beav.  560. 

(e)  2  Roper's  Husband  and  Wife  73  ;  Palmer  v.  Wakefield,  3  Beav.  227  ;  Luard's  Case, 
1  DeG.,  F.  &  J.  533. 

(/)  Heard  v.  Stamford,  3  P.  Wms.  409. 

(g)  2  Roper's  Husband  and  Wife  110;   Seaton  v.  Benedict,  5  Bing.  28  (E.  C.  L.  R. 

vol.  15). 


382  OF    PERSONAL   ESTATE   GENERALLY. 

articles  should  not  be  necessaries,  yet  if  the  husband  be  aware  of  the 
P^qoq-i  purchase,(/i)  *or  if  he  recognise  it,  by  allowing  his  wife  to  use  or 
'-  -'  wear  the  articles  bought,(^■)  she  will  be  considered  as  having 
bought  them  with  his  authority,  and  he  will  consequently  be  liable  to 
pay  for  them. 

The  burdens  with  which  the  husband  is  thus  chargeable  are  the  con- 
sideration which  he  pays  for  his  marital  rights  in  his  wife's  property. 
It  is  therefore  a  rule  of  law,  that  the  husband  shall  not,  previously  to 
the  marriage,  be  defrauded  of  those  rights  by  his  intended  wife.(A)  Ac- 
cordingly if  the  wife,  after  an  engagement  to  marry,  should  assign  away 
any  of  her  property  without  the  knowledge  and  consent  of  her  intended 
hnsband,  such  assignment  would  be  void,  as  a  fraud  on  his  marital  rights. (Z) 
And  the  circumstance  of  the  intended  husband's  being  ignorant  of  her 
possession  of  the  property  in  question  would  be  immaterial.(m) 

The  right  of  the  husband  to  the  whole  of  his  wife's  personal  estate,  in 
the  event  of  her  decease  in  his  lifetime,  may  be  waived  by  his  giving  her 
authority  to  dispose  of  such  estate,  or  any  part  of  it,  by  her  will;  and 
such  a  will  will  be  valid  and  binding  on  the  husband  if  he  once  allow  it 
to  be  proved. (w)  But  during  the  wife's  lifetime,  and  even  after  her  death, 
until  probate  of  the  will,  this  authority  may  be  revoked ;  and  if  the  hus- 
band should  die  before  the  wife,  such  a  will  would  not  be  binding  on  the 
wife's  next  of  kin.(o) 

• 

*But  at  the  present  day,  power  to  dispose  of  property  of  any 
L  ^  -•  kind  maybe  given  to  a  married  woman,  independently  of  her 
husband,  by  means  of  a  trust  for  her  separate  use,  which  trust  may  be 
enforced  in  equity. (p)  When  personal  estate  is  so  given,  the  wife  has 
the  same  powers  of  ownership  as  if  she  were  a  feme  sole ;  she  may  ac- 
cordingly dispose  of  such  property  without  her  husband's  concurrence, 
either  in  her  lifetime  or  by  her  will. (5)     But  should  she  die  in  his  life- 

(A)  Petty  V.  Anderson,  3  Bing.  170  (E.  C.  L.  R.  vol.  11). 

\i)  See  Montague  v.  Benedict,  3  B.  &  C.  631,  638  (E.  C.  L.  R.  vol.  10). 

{k)  Countess  of  Strathmore  v.  Bowes,  1  Ves.  jun.  22,  28. 

{I)  England  v.  Downs,  2  Beav.  522  ;  Taylor  v.  Pugh,  1  Hare  608  ;  Prideaux  v.  Lons- 
dale, 4  Giff.  159 ;  affirmed,  1  De  G.,  J.  &  S.  433  ;  Downes  v.  Jennings,  32  Beav.  290. 

{m)  Goddard  v.  Snow,  1  Russ.  485.  (w)   1  Rop.  Husband  and  Wife  169,  170. 

(o)   15  Ves.  156. 

{p)  See  Principles  of  the  Law  of  Real  Property  164,  1st  ed. ;  174,  2d  ed.  ;  181,  3d 
ed.  ;   18,  3d  ed.  ;  182,  4th  ed. ;  190,  5th  ed. ;  200,  6th  ed.  ;  207,  7th  ed. ;  214,  8th  ed. 

{q)  Fettiplace  v.  Gorgas,  1  Ves.  jun.  46  ;  s.  c.  3  Bro.  G.  C.  8  ;  2  Rop.  Husband  and 
Wife  182. 


OF   THE   MUTUAL   RIGHTS    OF    HUSBAND   AND   WIFE.  384 

time  without  having  made  any  disposition,  her  husband  will  become  en- 
titled to  it  either  in  his  marital  right(r)  or  as  her  administrator,(s)  accord- 
ing as  the  property  may  be  in  possession  or  in  action.  A  trust  for  a 
woman's  separate  use  is  properly  and  technically  created  by  means  of  the 
words  '-separate  use."  A  gift,  however,  to  a  woman  for  her  sole  use 
has  now  been  decided  not  to  create  a  trust  for  her  separate  use,  unless 
aided  by  the  context. (w)  And  a  gift  to  a  woman  for  her  own  use,(a;)  or 
to  be  paid  into  her  proper  hands  for  her  own  proper  use  and  benefit,(2) 
will  not  be  sufficient  to  exclude  the  rights  of  her  husband.^ 

*A  simple  gift  of  property  for  a  married  woman's  separate  r*oof:-| 
use  is  not  so  usual  as  the  gift  of  the  income  only  of  the  property 
during  her  life  or  during  the  joint  lives  of  herself  and  her  husband. (a) 
A  gift  of  the  income  of  property  to  a  woman's  separate  use  may  be 
made  either  after  her  marriage,  or  in  contemplation  of  marriage,  or 
whilst  she  is  sole;  and  the  gift  maybe  made  either  independently  of 
her  present  husband,  if  any,  or  of  any  future  husband.  When  the  gift  is 
made  to  a  woman's  separate  use,  independently  of  any  fututre  husband,  the 
act  of  her  marriage  will  confer  no  interest  in  the  property  on  her  husband, 
but  she  will  enjoy,  after  marriage,  the  same  interest  and  power  of  disposition 
as  she  had  before.(5)  It  is,  however,  more  usual,  when  the  income  only  of 
property  is  given  to  a  wife's  separate  use,  to  insert  a  condition  that  she 
shall  not  dispose  of  the  same  in  any  mode  of  anticipation.  Conditions 
restraining  the  alienation  of  property  are  generally  invalid,  as  being 
contrary  to  the  policy  of  the  law.  But  the  courts  of  equity  have  made 
an  exception  to  this  rule  in  favor  of  married  woman,  and  having  once 
established  a  trust  for  a  woman's  separate  use,  they  have  permitted 
such  a  trust  to  be  made  effectual  by  depriving  the  wife  herself  of  the 
power  of  disposition. (c)      When  the  income  of  property  is  given  to  a 

(r)  Molony  v.  Kennedy,  10  Sim.  174  ;  Tugman  v.  Hopkins,  4  Man.  &  Gran.  384  (E. 
C.  L.  R.  vol.  43). 

(s)  Watt  V.  Watt,  3  Ves.  246,  247  ;  Proudley  v.  Fielder,  2  Myl.  &  K.  57. 

{t)  Lee  V.  Prieaux,  3  Bro.  C.  C.  381. 

(m)  Massy  v.  Hayes,  L.  J.,  Ireland,  15  W.  R.  376  ;  affirmed  in  the  House  of  Lords, 
16  July,  1869 ;  Gilbert  v.  Lewis,  1  De  G.,  J.  &  S.  38. 

{x)  Roberts  v.  Spicer,  5  Madd.  491  ;   Kensington  v.  Dollond,  2  Myl.  &  K.  184. 

{y)  Tyler  v.  Lake,  2  Russ.  &  Myl.  133.         (z)  Blacklow  v.  Laws,  2  Hare  49. 

(a)  See  Appendix  B. 

(b)  Tullett  V.  Armstrong,  1  Beav.  1  ;  4  Myl.  &  Cr.  390 ;  Scarborough  v.  Borraan,  1 
Beav.  34;  4  Myl.  &  Cr.  377. 

(c)  Brandon  v.  Robinson,  18  Ves.  434  ;  Robinson  v.  Wheelwright,  6  De  G.,  M.  & 
G.  535. 

1  See  Hill  on  Trustees,  star  page  405,     the  American  authorities  are  collected. 
note  2,  and  star  page  420,  note  2,  where 


385  OF   PERSONAL    ESTATE    GENERALLY. 

woman's  separate  use,  without  power  of  anticipation,  she  is  not  thereby 
deprived  of  the  power  of  alienation  so  long  as  she  continues  single.((^) 
Previously  to  or  in  contemplation  of  marriage  she  may  therefore  make 
such  disposition  or  settlement  of  such  income  as  she  may  think  proper. 
But  should  she  marry  Avithout  a  settlement,  the  restraint  on  alienation 
will  *then  attach,  and  so  long  as  she  remains  under  coverture 
^  -'  she  will  have  no  further  power  than  that  of  receiving  the  income 
as  it  grows  due.(g)  On  her  widowhood  her  power  of  alienation  will 
again  revive,(/)  but  will  cease  on  her  second  marriage  without  having 
previously  made  any  disposition, ((/)  provided  the  restriction  on  alienation 
be  not,  by  the  terms  of  the  gift,  confined  to  her  first  marriage.(/i)  The 
intention  to  restrain  alienation  ought  always  to  be  clearly  expressed.  A 
direction  to  pay  the  income  of  property  into  the  hands  of  a  married 
woman,  and  not  otherwise,(^')  or  on  her  personal  appearance  and 
receipt,(yt)  will  not  be  sufficient  to  restrain  her  from  disposing  of  her 
interest,  the  words  being  considered  as  intended  only  to  exclude  the 
marital  claims  of  her  husband.  But  if  an  intention  can  be  collected  from 
the  terms  of  the  instrument,  not  only  to  exclude  the  husband's  claims, 
but  also  to  prevent  the  wife  from  anticipating,  such  intention  will  prevail, 
although  it  may  be  expressed  rather  in  popular  than  in  strictly  technical 
language.  (Z)^  ' 

In  addition  to  trusts  for  separate  use,  powers  of  appointment  may,  as 

we  have  seen,(?w)  be  given  to  married  women  independently  of  their  hus- 

■  bands,  by  means  of  which  they  may  be  enabled  to  dispose  of  property 

_,    without  their  husband's  concurrence  ;{n)  and  any  *appointment 

^  under  a  general  power  may  be  made  by  a  married  woman  in 

favor  of  her  husband,  as  well  as  of  any  other  person.^ 

(d)  Woodmeston  v.  Walker,    2    Russ.  &  Myl.   197  ;  Brown  v.   Pocock,   2   Russ.  & 

Myl.  210. 

(e)  Tullett  V.  Armstrong,  1  Beav.  1  ;  4  Myl.  &  Cr.  390  ;  Scarborough  v.  Borman,  1 
Beav.  34  ;  4  Myl.  &  Cr.  377  ;  Olive  v.  Carew,  1  Johns.  &  H.  199. 

(/)  Barton  v.  Briscoe,  Jacob  603.  {ff)  Tullett  v.  Armstrong,  ubi  supra. 

(h)  Re  Gaffee,  1  Macn.  &  G.  541.  (i)  Acton  v.  White,  1  Sim.  &  Stu.  429. 

(k)  Ross's  Trust,  1  Sim.,  N.  S.  196. 

(l)  Brown  v.  Bamford,  1  Phil.  620  ;  Moore  v.  Moore,  1  Coll.  54 ;  Harrop  v.  Howard^ 
3  Hare  624  ;  Harnett  v.  Macdougall,  8  Beav.  187  ;  Field  v.  Evans,  15  Sim.  375  ;  Baker 
V.  Bradley,  7  De  G.,  M.  &  G.  597  ;  Goulder  v.  Camm,  De  G.,  F.  &  J.  146. 

(m)  Ante,  p.  270.  (n)  See  Appendix  B. 

1  See  ante,  p.  284,  note.  her  husband:  Osgood  v.  Breed,  12  Mass. 

2  A  married  woman  having  a  power  of  532  ;  Hoover  v.  The  Samaritan  Society,  4 
appointment  over  real  or  personal  estate,  Whart.  453  ;  Towers  v.  Hagner,  3  Id.  48  ; 
may  dispose  of  it  without  the  consent  of  Holman  v.  Perry  et  al.,  4  Mete.  496  ;  Bra- 


OF   THE    MUTUAL    RIGHTS    OF    HUSBAND   AND   AVIFE. 


387 


Unhappy  differences  between  husband  and  wife  sometimes  end  in  a 
separation.     Such  a  state  of  things  is  not,  however,  encouraged  by  the 


dish  V.  Gibbs  ct  al.,  3  Johns.  Ch.  536  ; 
Newlin  v.  Freeman  et  al.,  1  Ired.  514  ; 
West  V.  West  et  al.,  10  S.  &  R.  149  ; 
Barnes  Lessee  v.  Irwin  et  al.,  2  Dall.  201  ; 
Leigh,  Admr.,  v.  Smith  et  al.,  3  Ired.  Ch. 
442  ;  Wilkinson  v.  Wright,  &c.,  G  B.  Mon. 
577  ;  Strong  v.  Wilkin  et  al.,  1  Barb.  Ch. 
1  ;  Moerhing  v.  Mitchell,  &c..  Id.  264 ; 
Robins  v.  Abrahams  et  al.,  1  Halst.  Ch. 
465  ;  Cruger  v.  Cruger,  5  Barb.  226 ;  s.  c. 
nomine  Cruger  v.  Douglass,  4  Edw.  Ch. 
433  ;  Ladd  v.  Ladd  et  al.,  8  How.  10  ;  Pol- 
lock V.  Glassell,  2  Gratt.  439  ;  Woodson 
V.  Perkins,  5  Id.  351  ;  Hicks,  Exr.,  v. 
Cochran  et  al.,  Exrs.,  4  Edw.  Ch.  107  ; 
Am.  Home  Missionary  Society  v.  Wad- 
hams,  10  Barb.  604  ;  Chapman  v.  Gray, 
Exr.,  8  Geo.  341 ;  Barton  et  al.  v.  Holly, 
18  Ala.  408 ;  Petty  v.  Mallier,  14  B.  Mon. 
246  ;  Jackson  v.  West,  22  Md.  71.  In  the 
case  of  Thompson  v.  Murray,  2  Hill  Ch. 
214,  it  was  said  by  O'Neall,  J.:  "Not- 
withstanding in  general  legal  contempla- 
tion, the  existence  of  the  wife  is  merged 
in  that  of  her  husband  during  coverture, 
yet  this  rule  is  not  of  such  universal  ap- 
'  plication  as  to  render  every  act  of  the 
wife  void A  feme  covert  may  exe- 
cute any  kind  of  power,  whether  simply 
collateral,  appendant,  or  in  gross,  and  it 
is  immaterial  whether  it  was  given  to  her 
while  sole  or  married.     The  concurrence  of 

the  husband  is  in  no  case  necessary 

It  may  be  well,  however,  to  look  at  the 
manner  in  which  an  appointment  oper- 
ates, to  show  that  no  objection  can  in 
fact  exist  to  an  execution  of  it  by  a  feme 
covert.  The  appointee  is  merely  desig- 
nated by  the  person  making  the  appoint- 
ment;   his  estate  and  rights  are  derived 

from  the  deed  creating  the  power 

This  being  the  case,  and  the  appointee 
taking  nothing  from  the  wife,  but  all 
from  the  person  creating  the  power,  there 
can  be  no  reason  to  avoid  her  act  on 
account  of  coverture,  the  disability  of 
which,  is  intended  both  for  the  protection 
of   her   husband,   and   also   for   herself." 


Such  powers  will  be  good,  though  created 
by  articles  of  agreement,  made  between 
husband  and  wife  before  coverture,  with- 
out the  intervention  of  a  trustee,  for  "  it  is 
now  no  longer  deemed  necessary  that  the 
legal  estate  should  be  vested  in  trustees, 
to  enable  a  feme  covert  to  dispose   of  her 
estate  in  equity.     A  mere  agreement,  en- 
tered into  before  marriage  with   her  hus- 
band, that  she  should  have  the  power  to 
dispose    of  her   real  and  personal    estate 
during  coverture,  will  enable    her    to  do 
so.     Although    such    an    agreement    be- 
comes extinguished,  at  law,  by  the  subse- 
quent marriage,    yet    equity   supports    it, 
and  will  compel  the  husband  to   perform 
it :  Strong  v.  Skinner,  4  Barb.  552  ;  Emery, 
Admr.,  v.  Neighbour  et  al.,  2  Halst.  142 
Bradish  v.  Gibbs  et  al.,  3  Johns.  Ch.  536 
Newlin   v.    Freeman   et   al.,  1    Ired.  514 
Barnes's  Lessee  v.  Irwin  et  al.,  2  Dall.  201 
Resor  v.  Resor,  9  Ind.  347  ;  andthe  cases  re- 
ferred to  in  the  note  to  page  297,  ff«^e.  And 
a  feme  covert  may  execute  these  appoint- 
ments as  Avell  in  favor  of  her  husband  as  a 
stranger  :  Hoover  v.  The  Samaritan  Soc, 
4  Whart.  453  ;  Towers  v.  Hagner,  3  Id.  48  ; 
Bradish  v.  Gibbs,  3  Johns.' Ch.  536;  Dal- 
lam V.  Wampole   et  al.,  Pet.  C.  C.   116; 
Jaques  et  al.  v.  The  Trustees  of  the  M.  E. 
Church,  17  Johns.  548;  Whitall  v.  Clark  et 
al.,  2  Edw.  Ch.  159 ;  Crugeru.  Cruger,  5  Barb . 
226;  s.  c.  nomine  Cruger  v.  Douglass  etal.,  4 
Edw.  Ch.  433  ;  GardnertJ.  Gardner  etal.,  22 
Wend.  526  ;  Meriam  v.  Harsen  et  al.,  4  Edw. 
Ch.  70  ;  Imlay  et  al.  v.  Huntington  et  al.,  20 
Conn.  173 ;  Converse  v.  Converse,  9  Rich. 
Eq.  535.  As  regards  the  formalities  required 
to  be  observed  in  the  execution  of  these 
powers,  see  Jackson  v.  Edwards,  7  Paige 
Ch.  402  ;    Picquet  v.  Swan   et  al.,  4  Mas. 
461  ;  Emery,  Admr.  v.  Neighbour  et  al.,  2 
Halst.  142  ;  Newlin?;.  Freeman  et  al.,  1  Ired. 
514;  Leigh,  Admr.,  v.  Smith  et  al.,  3  Ired. 
Ch.  442;  Heath  v.  Withington,  6  Cush.  497. 
It  has  been  repeatedly  decided,  that  a 
feme  covert  is,  in  respect  to  her  separate 
estate,  to  be  deemed  a /erne  sole:  Leaycraft 


387 


OF  PERSONAL  ESTATE  GENERALLY. 


law.     A  clause  in  a  marriage  settlement  providing  for  the  event  of  a 
separation,  has  been  considered  to  be  void;(o)  and  so  has  a  condition  in 

(o)  Cocksedge  v.  Cockscdge,  14  Sim.  244  ;  Cartwright  v.  Gartwright,  3  De  G.,  M.  & 
G.  982  ;  H.  V.  W.,  3  Kay  &  J.  382.  See  also  Hindley  v.  Marquis  of  Westmeath,  6  B.  & 
C.  200  (E.  C.  L.  R,  vol.  13) ;  Merryweather  v.  Jones,  4  Giff.  499. 


V.  Redden,  3  Green  Ch.  512;N.  A.  Coal 
Co.  V.  Dyott,  7  Paige  Ch.  1  ;  s.  c.  20  Wend. 
570  ;   Virouneau  v.  Pegram,  2  Leigh    183  ; 
Williamson  v.  Beckham,  8   Id.   20  ;    Cum- 
ming  et  al.  v.  Williamson  et  al.,  1  Sandf. 
Ch.  17  ;   Martin  v.  Dwelly  et  al.,  6  Wend. 
1  ;   McCroan  et  al.  v.  Pope  et  al.,  17  Ala. 
612  ;  Albin  v.  Lord,  39  N.  H.  196  ;  Gibson 
V.  Walker,  20  N.  Y.  476  ;   Cooke  v.  Hus- 
bands,   11    Md.    492  ;    Marten    v.   Bebo,    6 
Florida  381  ;    and  this  is  no  doubt  true 
where  her  separate  estate  is  without  quali- 
fication, limitation  or  restriction,  as  to  its 
use   and  enjoyment:   Dallas   v.  Heard,  32 
Geo.  604 ;  but  the  placing  of  the  property 
of  a  married  woman,  by  statute,  under  her 
sole  control,  and  to  be  held,  owned,  pos- 
sessed and  enjoyed  as  if  she  were  unmar- 
ried, does  not  authorize  her  to  dispose  of 
it  in  any  other  mode  than  that  which  the 
statute  conferring  the  power  of  limitation 
requires  :    Scovil   v.    Kelsey,  46  HI.  344 ; 
Philbrooks  v.  McEwen,  29  Ind.  397  ;  Bart- 
lett  V.  Fleming,  3  W.  Va.  163  ;  Nichols  v. 
Gorden,  25   Texas    109;   Graham  v.  Long, 
65  Penn.  St.  383.     There  is  considerable 
variance  among  the  decisions,  as  to  the 
extent  of   her  ability  to   dispose   of   her 
estate  under  a  power,  some  holding  that 
she  may  grant  or  devise  in  any  manner  not 
expressly    negatived    in    the    instrument 
creating  the  power  ;  and  others  maintain- 
ing   that    she    can    only    exercise    those 
powers  expressly  given,  and  in  the  manner 
pointed    out,     and    not    otherwise.     The 
weight  of  authority  is  decidedly  in  favor 
of  the  latter  doctrine  ;  thus  in  Pennsylva- 
nia, although  in  the  case  of  Newlin  et  al., 
Exrs.,  V.  Newlin,  1  S.  &  R.  274,  it  was  held, 
"  that  if  a  man   devise   his  real  estate  to 
trustees  to   raise  a  sum  of  money,  which 
when  raised,  they  are  to  put  out  at  inter- 
est, for  the  sole  and  separate  use  of  his 
daughter,  a  feme  covert,  who  is  to  receive 
the  interest  annually,  and  whose  receipt  is 


to  be  a  discharge,  she  may  release  her 
interest,  though  no  express  power  of  ap- 
pointment be  given  in  the  will ;"  yet,  that 
decision  has  been  overruled,  and  there  is 
no  question  that  it  is  now  the  law  of  that 
state,  "  that  instead  of  having  every  power 
from  which  she  is  not  negatively  debarred 
in  the  conveyance,  she  will  be  deemed  to 
have  none  but  what  is  positively  given  or 
reserved  to  her  :"  Thomas  v.  Folwell  et  al., 
2  Whart.  11;  Lancaster  v.  Dolan,  1  Rawle 
231;  Rogers  v.  Smith,  4  Penn.  St.  93; 
Lyne's  Exr.  v.  Crouse  et  al.,  1  Id.  114; 
Dorrance  v.  Scott,  3  Whart.  316  ;  Wallace 
V.  Costen,  9  Watts  137;  Estate  of  Wagner, 
2  Ash.  448;  Wright  v.  Brown  et  ux.,  44 
Penn.  St.  224  ;  Penna.  Co.  v.  Foster,  35  Id. 
134. 

The  law  of  Tennessee,  Kentucky,  South 
Carolina,  Alabama,  Georgia,  Illinois,  Mis- 
sissippi, and  Maryland,  is  similar  to  that 
of  Pennsylvania,  as  will  be  seen  from 
the  following  cases,  which  agree  in  princi- 
ple with  the  Pennsylvania  decisions  :  Mor- 
gan V.  Elam  et  al.,  4  Yerg.  375;  Litton  v. 
Baldwin  et  al.,  8  Humph.  209  ;  Ware  et  al. 
V.  Sharpe,  1  Swan  489  ;  Calhoun  v.  Cal- 
houn et  al.,  2  Strobh.  Eq.  231  ;  Ewing  et 
al.  V.  Smith  et  al.,  3  Desauss.  456  ;  Reid  v. 
Lamar,  1  Strobh.  Eq.  27  ;  Maj-wood  et  al. 
V.  Johnston  et  al.,  1  Hill  Ch.  230;  Clark 
V.  Makenna,  Cheeve  Eq.  163 ;  Doty  et  al. 
V.  Mitchell,  9  Sm.  &  M.  435 ;  Montgomery 
et  al.  V.  The  Agricultural  Bank,  10  Id.  566  ; 
Wylly  et  al.  v.  Collins  &  Co.,  9  Geo.  237  ; 
Weeks  v.  Sago,  Admr.,  9  Id.  199  ;  Tarr  et 
al.  V.  Williams,  4  Md.  Ch.  Decs.  68 ;  Wil- 
liams v.  Donaldson  et  al..  Id.  414;  Miller 
et  al.  V.  Williamson  et  al.,  5  Md.  220  ; 
Swift  V.  Castle,  23  111.  209;  Fletcher  v. 
Coleman,  2  Head  384  ;  Hoyle  v.  Smith,  1 
Id  90;  Andrews  D.Jones,  32  Miss.  274; 
Hahn  v.  Prudell,  1  Bush  538  ;  Schlosser's 
Ap.,  58  Penn.  St.  493. 

In  the   State  of  New  York,  so  long  ago 


OF   THE   MUTUAL   RIGHTS    OF   HUSBAND   AND   WIFE. 


387 


a  gift  of  personal  estate  to  a  woman  living  apart  from  her  husband,  that 
the  gift  shall  cease  in  case  she  should  cohabit  with  him.(p)     It  is  how- 


{p)  Wren  v.  Bradley,  2  De  G.  &  Sm.  49. 


as  the  case  of  The  Trustees  of  the  M.  E. 
Church  V.  Jaques  et  al.,  3  Johns.  Ch.  77,  it 
was  decided  by  Chancellor  Kent,  that  a 
"feme  covert,  with  respect  to  her  separate 
property,  is  to  be  considered  as  a,  feme  sole, 
to  the  extent  only  of  the  power  given  to  her 
by  the  marriage  settlement.  Her  power 
of  disposition  is  not  absolute,  but  sub  mode, 
to  be  exercised  according  to  the  mode 
prescribed  in  the  deed  or  will,  under  which 
she  becomes  entitled  to  the  property. 
Therefore,  if  she  has  a  power  of  appoint- 
ment by  will,  she  cannot  appoint  by  deed, 
or  where  she  is  empowered  to  appoint  by 
deed,  the  giving  a  bond,  or  note,  or  a  parol 
promise,  without  reference  to  the  property, 
or  making  a  parol  gift  of  it,  is  not  such 
an  appointment."  But  that  decision  was 
reversed  in  Jacques  et  al.  v.  The  Trustees 
of  the  M.  E.  Church,  17  Johns.  548,  where 
it  was  held,  that  "though  a  particular 
mode  of  disposition  be  specifically  pointed 
out,  in  the  instrument,  or  deed  of  settle- 
ment, it  will  not  preclude  her  adopting  any 
other  mode  of  disposition,  unless  there 
are  negative  words  restraining  her  power 
of  disposition,  except  in  the  very  mode 
so  pointed  out ;  and  this  still  continues 
to  be  the  law  in  that  state :  The  Fire- 
men's Insurance  Co.  of  Albany  v.  Bay, 
4  Barb.  413  ;  s.  c.  4  Comst.  9  ;  Knowles 
et  al.  V.  McCamly  et  al.,  10  Paige  342  ; 
Strong  V.  Skinner,  4  Barb.  552  ;  Gardner  t». 
Gardner  et  al.,  22  Wend.  526  ;  although 
the  doctrine  has  been  somewhat  modified 
by  the  enactment  of  the  Revised  Statutes, 
since  which,  "  where  real  estate  is  settled 
to  a  married  woman's  separate  use,  neither 
the  estate,  nor  the  rents  and  profits,  can 
be  charged  for  any  debt  or  liability,  cre- 
ated or  imposed  upon  it  by  her.  It  is  no 
longer  her  estate.  The  whole  estate  is  in 
the  trustees,  and  her  interest  inalienable  ;" 
Noyes  v.  Blakeman,  3  Sandf.  531  ;  L'Amor- 
eaux  V.  Van  Rensselaer  et  al.,  1  Barb.  Ch. 
34 ;  Rogers  v.  Ludlow  et  al.,  3  Sandf.  Ch. 


104.  See  also,  Wadhams  v.  American 
Home  Missionary  Society,  2  Kernan  415.  , 

In  Connecticut,  it  was  said  by  Storrs,  J., 
in  the  case  of  Imlay  et  al.  v.  Huntington 
et  al.  20  Conn.  173  :  "  The  principle  is 
established,  by  the  decided  weight  of  au- 
thorities in  this  country,  in  accordance 
with  what  is  now  universally  conceded 
to  be  the  established  doctrine  in  England, 
that  an  ante-nuptial  settlement,  by  a 
woman,  of  her  property,  to  her  separate 
use  after  marriage,  gives  her,  in  equity, 
the  full  power  of  disposing  of  such  pro- 
perty, by  any  suitable  act  or  mode  of  con- 
veyance, in  the  same  manner,  and  to  the 
same  extent,  as  if  she  were  a,  feme  sole,  ex- 
cepting so  far  as  there  is  some  expressed  or 
implied  restriction  upon  such  power  of  dis- 
position, in  the  instrument  of  settlement, 
and  that  no  such  restriction  is  implied, 
from  the  circumstance  that  it  is  provided 
in  such  settlement,  that  she  may  dispose  of 
it  any  particular  mode  therein  pointed  out ; 
but  that  such  provision  must  either  ex- 
pressly, or  by  necessary  implication,  ex- 
clude any  other  mode  of  disposition,  in 
order  to  constitute  such  a  restriction." 
The  same  has  been  held  also  in  North 
Carolina,  Missouri  and  Virginia  :  Claffin  v. 
Van  Wagoner,  32  Mo.  352  ;  Penn  v.  White- 
head, 17  Gratt.  503  ;  Harris  et  al.  v.  Harris 
et  al.,  7  Ired.  Eq.  111. 

As  to  the  manner  in  which  a  married 
woman  may  charge  her  separate  estate, 
for  the  debts  of  herself  or  her  husband, 
see  Conn  et  al.  v.  Conn  et  al.,  1  Md.  Ch. 
Decs.  212  ;  Price  et  al.  v.  Bigham's  Exrs., 
7  H.  &  Johns.  296  ;  Tiernan  v.  Poor  et  al., 
1  Gill  &  Johns.  216  ;  Frazier  et  al.  v. 
Brownlow  et  al.,  3  Ired.  Eq.  237;  Boarman 
V.  Groves,  23  Miss.  380  ;  Cherry  v.  Cle- 
ments, 10  Humph.  552;  Greenough  v. 
Wiggington,  2  Green  435 ;  Bradford  v. 
Greenway  et  al.,  17  Ala.  797  ;  Coats  et  al. 
V.  Robinson  et  al.,  10  Miss.  760  ;  Forrest 
et  al.  V.  Robinson,  Exr.,  4  Port.  44  ;  Sadler 


I 


387  OF   PERSONAL   ESTATE   GENERALLY. 

ever  clear,  that  a  deed  making  provision  for  an  immediate  separation 
between  husband  and  wife  is  not  void  for  illegal ity,((^)  and  any  infringe- 
ment of  tlie  covenants  contained  in  it  will  be  restrained  by  the  injunction 
of  the  Court  of  Chancery. (r)  One  of  the  usual  provisions  of  a  deed  of 
separation  is,  a  covenant  on  the  part  of  some  friend  of  the  wife's  to  in- 
demnify the  husband  against  any  debts  she  may  incur  whilst  living  apart. 
Such  a  covenant  is  a  valuable  consideration  for  any  settlement  which  the 
husband  may  make  for  the  benefit  of  his  wife,  and  places  such  settlement 
on  the  same  footing  as  any  other  alienation  made  for  valuable  considera- 
tion.(s)  But  if  there  be  no  such  covenant,  nor  any  other  valuable  con- 
sideration, (f)  a  settlement  made  by  a  husband  on  separating  from  his 
wife  stands  in  the  same  position  as  any  other  voluntary  deed  •,{u)  and, 
r*^8m  t^^o^g^  binding  on  himself,  may  not  be  *binding  on  his  cred- 
itors.(a;)  The  circumstance  of  voluntary  separation  gives  to  the 
wife  no  further  power  of  disposition  over  property  than  she  possessed 
whilst  living  with  her  husband.(7/)     Accordingly  she  will  not,  should  she 

(q)  Jones  V.  Waite,  4  Man.  &  Gr.  1104  (E.  C.  L.  R.  vol.  43.) 

(r)  Sanders  v.  Rodway,  16  Beav.  20T. 

(«)   Stephens  v.  Olive,  2  Bro.  0.  C.  90 ;  Worrall  v.  Jacob,  3  Meriv.  25G,  269. 

(t)  See  Wilson  v.  Wilson,  14  Sim.  405  ;  1  H.  of  L.  Gas.  538. 

(m)  See  ante,  pp.  291,  298. 

(x)  Fitzer  v.  Fitzer,  2  Atk.  511 ;  Clough  v.  Lambert,  10  Sim.  174. 

(y)  Lord  St.  John  v.  Lady  St.  John,  11  Ves.  531. 

et  al.  V.  Houston  et  al.,  Id.  208;  Heugh  v.  et  al.,  Exrs.,  2  Id.  66 ;  Starret  v.  Wynn  et 
Jones,  32  Penn.  St.  432  ;  Hall  v.  Faust,  9  al.,  17  S.  &  R.  130;  Butler  et  al.  v.  Buck- 
Rich.  Eq.  294  ;  Marshall  v.  Miller,  3  Mete,  ingham,  5  Day  492  ;  Barton  et  al.  v.  Holly, 
(Ky.)  333  ;  Hubble  W.Wright,  23  Ind.  322;  18  Ala.  408;  Townsley  v.  Chapin,  12 
Wolff  w.  Van  Metre,  19  Iowa  134;  Lippin-  Allen  476  ;  Dunham  v.  Wright,  53  Penn. 
cott  V.  Hopkins,  57  Penn.  St.  328.  .  St.  167  ;  Ezelle  v.  Parker,  41  Miss.  520  ;  but 
A  distinction  is  to  be  noted  between  where  the  husband  is  sole  heir  of  the  wife, 
real  and  personal  property  of  the  wife,  as  he  may  also  consent  to  her  disposal  of  the 
regards  the  ability  of  the  husband  to  con-  realty:  Wagner  v.  Ellis,  7  Penn.  St. 
sent    to    her   making    disposal    thereof;  411. 

thus,  "A  husband  may  waive  the  interest  In  New  Hampshire,  New  York,  Pennsyl- 

which  the  law  gives  him  in  his  wife's  es-  vania,    and    several    other    states,    a  feme 

tate,  and  empower  her  to  dispose  of  her  covert  is  empowered,  by  statute,  to  make  a 

personal   estate  by  will;    and  his  assent  will  of  her  real  or  personal  estate.     In  the 

alone,  to   a  bequest  by  her  of  money  or  latter  state,  the  wording  of  the  act  is  as 

chattels,  will  make   it   valid ;    but   as  to  follows  :    "  Any  married  woman  may  dis- 

the  real   estate   of  the   wife,  the  rule   is  pose,  by  her  last  will  and   testament,   of 

different;    and   his   assent   cannot   cause  her   separate  property,  real,   personal  or 

that  to  be  a  lawful  conveyance  of  her  cs-  mixed,  whether  the  same  accrues  to  her 

tate,  which,  by  the  general  rules  of  law,  before   or    during    coverture;    provided, 

would  not  be  so."     Estate  of  Wagner,  2  that  said  last  will  and  testament  be  exe- 

Ash.  448  ;  West  v.  West  et  al.,  10  S.  &  R.  cuted  in  the  presence  of  two  or  more  wit- 

149  ;     Grimke     v.    Exrs.    of    Grimke,     I  nesses,  neither  of  whom  shall  be  her  hus- 

Desauss.  366;  Exrs.  of  Smelie  v.  Reynolds  band."     Purd.  Dig.  (1861),  p.  1016. 


OF    THE    MUTUAL    RIGHTS    OF    HUSBAND   AND   WIFE.  388 

survive  her  husband,  be  bound  by  any  disposition  of  her  personal  estate 
made  on  the  separation,  which  her  husband  would  have  been  unable  to 
make,  without  her  concurrence,  had  no  separation  taken  place.(2;)  If 
after  separation  the  parties  become  reconciled,(a)  or  if  a  restitution  of 
conjugal  rights  be  decreed  by  the  Court  for  Divorce  and  Matrimonial 
Causes,(5)  the  provisions  of  the  deed  of  separation  will  thenceforth  become 
inoperative. 

In  the  event  of  separation,  the  custody  of  the  infant  children  belongs 
by  law  to  the  father  as  the  natural  guardian. (c)  And  it  has  been  de- 
cided that  he  is  incompetent  to  relinquish  a  duty  thrown  upon  him  by 
the  law,  and  that,  therefore,  a  covenant  on  his  part  to  give  up  the  chil- 
dren to  the  care  of  their  mother  is  illegal. (t?)  If,  however,  the  conduct 
of  the  father  should  be  such  that  the  children  would  be  exposed  to  cruelty 
or  gross  corruption  of  morals  from  being  left  in  his  custody,  the  law  will 
deprive  him  of  a  charge  for  which  he  has  shown  himself  totally  unfit. (c)^ 

(z)  Stamper  v.  Barker,  5  Madd.  157  ;  Slatter  v.  Slatter,  1  You.  &  Col.  28. 

(a)  Bateman  v.  Ross,  1  Dow  235,  245  ;  Lord  St.  John  v.  Lady  St.  John,  11  Ves.  537  ; 
Wilson  V.  Wilson,  15  Sim.  487,  500;  1  H.  of  L.  Cas.  538.  See,  however,  Hulme  v. 
Chitty,  9  Beav.  437. 

{b)  Fletcher  v.  Fletcher,  2  Cox  99 ;  stat.  20  &  21  Vict.  c.  85. 

(c)  Co.  Litt.  88  b,  n.  (12)  ;  Rex  v.  Sherrington,  3  B.  &  Ad.  714  (E.  C.  L.  R.  vol.  23). 

(d)  Lord  St.  John  v.  Lady  St.  John,  11  Ves.  531  ;  Vansittart  v.  Vansittart,  4  Kay  & 
J.  62  ;  2  De  G.  &  J.  249  ;  Hope  v.  Hope,  22  Beav.  351  ;  3  Jur.  N.  S.  454,  Lords  Just.  ; 
Walrond  v.  Walrond,  1  John.  18. 

(e)  Cruise  v.  Hunter,  2  Bro.  C.  C.  400  ;  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1 ;  Rex 
V.  Greenhill,  4  Ad.  &  E.  624  (B.  C.  L.  R.  vol.  31)  ;  Swift  v.  Swift,  L.  J.  11  Jur.  N.  S. 
458;  34  Law  Journ.  Chancery  394. 

1  In  the  case  of  The  United  States  v.  discretion,  it  will  also  consult  his  personal 
Green,  3  Mas.  485,  Judge  Story,  speaking  wishes.  It  will  free  it  from  all  undue  re- 
of  this  subject,  says  :  "  As  to  the  question  straint,  and  endeavor,  as  far  as  possible,  to 
of  the  right  of  the  father  to  have  the  cus-  administer  a  conscientious,  parental  duty, 
tody  of  his  infant  child,  in  a  general  sense  with  reference  to  its  welfare.  It  is  an  en- 
it  is  true.  But  this  is  not  on  account  of  tire  mistake  to  suppose,  that  the  court  is 
any  absolute  right  of  the  father,  but  for  at  all  events  bound  to  deliver  over  the  in- 
the  benefit  of  the  infant,  the  law  presum-  fant  to  his  father,  or  that  the  latter  has  an 
ing  it  to  be  for  its  interest,  to  be  under  the  absolute  vested  right  in  the  cyistody." 
nurture  and  care  of  his  natural  protector.  The  principles  contained  in  this  de- 
both  for  maintenance  and  education,  cision,  are  well  supported  by  the  authori- 
When,  therefore,  the  court  is  asked  to  lend  ties,  for  the  father  is,  in  general,  entitled 
its  aid,  to  put  the  infant  into  the  custody  to  the  custody  of  his  child  :  Common- 
of  the  father,  and  to  withdraw  him  from  wealth  v.  Nutt,  2  Brown  143;  In  the  mat- 
other  persons,  it  will  look  into  all  the  cir-  ter  of  Mitchell,  R.  M.  Charlton  489 ; 
cumstances,  and  ascertain  whether  it  will  Ahrenfelt  v.  Ahrenfelt,  1  Hoff.  Ch.  497  ;  s. 
be  for  the  real,  permanent  interests  of  the  c.  4  Sandf.  Ch.  493  ;  The  People  v.  Mercien, 
infant ;  and  if  the  infant  be  of  sufficient  8  Paige  Ch.  47  ;  s.  c.  25  Wend.  64,  and  3 


388 


OF  PERSONAL  ESTATE  GENERALLY. 


P^qoq-i    Ariel  by  a  modern  act  of  *parliament,(/)  power  is  given  to  the 
judges  of  the  Court  of  Chancery(^)  upon  the  petition  of  the 

(/)  Stat.  2  &  3  Vict.  c.  54 ;  Ex  parte  Bartlett,  2  Coll.  661. 
Iff)  la  re  Taylor,  10  Sim.  291. 


Hill  400  ;  The  People  v.  Chegaray  et  al.,  18 

Wend.  637;  The  People  t-. ,  19  1(1. 

16  ;  In  the  matter  of  Kottman,  2  Hill  (S. 
C.)  363  ;  The  State  v.  Paine,  4  Humph. 
523;  Miner  t;.  Miner,  11  111.  48  ;  The  State 
V.  Stigall  et  al.,  2  Zabr.  286  ;  Tarkington 
et  al.  V.  The  State,  1  Cart.  HI  ;  Valentine 
V.  Valentine,  2  Halst.  Ch.  219;  Ex  parte 
Schumpert,  6  Rich.  344  ;  The  Common- 
wealth t;.  Sear  (D'Hauteville  Case),  Pamph. 
1840,  Philadelphia;  People  v.  Olmsted,  27 
Barb.  9;  Ex  parte  Hewitt,  11  Rich.  326; 
State  V.  Banks,  25  Ind.  495  ;  Johnson  i'. 
Terry,  34  Conn.  259 ;  and  his  parental 
rights  to  the  custody  of  his  infant  child 
may  be  transferred  by  deed  :  State  v.  Bar- 
rett, 45  N.  H.  15  ;  yet  courts  of  justice  may 
control  his  right,  when  the  safety  or  inter- 
ests of  the  child  imperiously  require  it: 
In  the  matter  of  Mitchell,  R.  M.  Charlton 
489;  The  People  v.  Chegaray  et  al.,  18 
Wend.  637  ;  Cowls  v.  Cowls,  3  Gilm.  440  ; 
Miner  v.  Miner,  11  111.  48;  Cornelius  v. 
Cornelius,  31  Ala.  479;  Lusk  v.  Lusk,  28 
Mo.  91 ;  and  though  the  courts  will  not 
lightly  exercise  this  authority  :  Bryan  v. 
Bryan,  34  Ala.  516;  yet  the  interest  of  the 
child  is  the  leading  if  not  the  paramount 
consideration  :  Wand  v.  Wand,  14  Cal.  512. 
Thus,  in  cases  of  tender  infancy,  the 
custody  of  the  children  may  be  given  to 
the  mother  in  preference  to  the  father  : 
Ahrenfeldt  v.  Ahrenfeldt,  1  Hoflf.  Ch.  497; 
B.  c.  4  Sandf.  Ch.  493  ;  Prather  v.  Prather, 
4  Desauss.  33  ;  The  State  v.  Smith,  6 
Greenl.  462  ;  The  State  v.  Paine,  4  Humph. 
523;  Cowls  .t;.  Cowls,  3  Gilm.  440;  The 
State  V.  Stigall  et  al.,  2  Zabr.  286; 
Valentine  v.  Valentine,  4  Halst.  Ch.  219  ; 
Ex  parte  Schumpert,  6  Rich.  344  ;  Com- 
monwealth V.  Sears  (D'Hauteville  Case), 
Pamph.  1840,  Philadelphia  ;  Levering  v. 
Levering,  16  Md.  213.  In  the  Common- 
wealth V.  Addicks,  5  Binn.  520,  the  court 
gave  the  custody  of  two  female  children, 
one  of  ten  and  the  other  of  seven  years  of 


age,  to  the  mother,  notwithstanding  her 
husband  had  been  divorced  from  her  for 
her  adultery;  and,  three  years  subse- 
quently, delivered  them  to  the  care  of  their 
father,  "  the  children  no  longer  requiring 
those  attentions  which  a  mother  alone  can 
properly  bestow,  and  having  arrived  at  an 
age  when  their  morals  were  likely  to  be 
injured  by  bad  example:"  Commonwealth 
V.  Addicks  et  al.,  2  S.  &  R.  174  ;  Mercein 
V.  The  People,  25  Wend.  64,  and  s.  c.  3 
Hill  400  ;  People  v.  Humphreys,  24  Barb. 
521;  and  this  has  been  done  even  where  it 
was  shown  that  the  temper  of  the  wife  was 
high  and  imperious,  the  proof  also  show- 
ing her  affection  for  the  child,  and  her 
proper  care  of  it,  and  that  the  exciting 
cause  of  her  temper  was  the  conduct  of 
the  children  of  her  husband  by  a  former 
wife :  Demott  v.  Commonwealth,  64 
Penn.  St.  305  ;  and  female  children,  of 
somei^hat  advanced  age,  have  sometimes 
been  held  to  require  the  society  and  sym- 
pathy of  their  mother,  as  was  held  in 
Miner  v.  Miner,  11  111.  48,  where  Caston, 
J.,  says,  "  An  infant  of  tender  years  is 
generally  left  with  the  mother  (if  no  ob- 
jection to  her  is  shown  to  exist),  even  when 
the  father  is  without  blame,  merely  be- 
cause of  his  inability  to  bestow  upon  it 
that  tender  care  which  nature  requires, 
and  which  it  is  the  peculiar  province  of 
the  mother  to  supply.  This  remark  will 
apply  with  much  force,  in  ctises  of  female 
children  of  a  more  advanced  age.  While 
the  affections  of  parents  for  daughters 
may  be  equal,  yet  the  mother,  from  her 
natural  endowments,  her  position  in  so- 
ciety, and  her  constant  association  with 
them,  can  give  them  that  care,  attention 
and  advice,  so  indispensable  to  their  wel- 
fare, which  a  father,  if  the  same  children 
were  left  to  his  supervision,  would  be  com- 
pelled, in  a  great  degree,  to  confide  to 
strangers."  So,  where  the  father  is  lead- 
ing a  grossly  immoral  life,  and  the  mother 


OF   THE   MUTUAL   RIGHTS    OF    HUSBAND   AND   WIFE. 


389 


mother  of  any  infant,  being  in  the  sole  custody  of  the  father,  or  of  any 
person  by  his  authority,  or  of  any  guardian  after  the  death  of  the  father, 


is  a  virtuous  woman,  she  shall  have  the 
care  and  control  of  the  children  :  Williams 
V.  Williams,  4  Desauss.  183;  The  People 

V. ,  19  Wend.  16  ;  State  v.  Baird,  3 

Green  194  ;  Cole  v.  Cole,  23  Iowa  433  ;  or 
if  the  father  maltreats  the  children,  or 
seeks  to  maintain  possession  of  them  for 
an  ill  purpose,  he  may  be  deprived  of  their 

company:  The  People  v. ,  19  Wend. 

16;  In  the  matter  of  Kottman,  2  Hill  (S. 
C.)  363;  Codd  v.  Codd,  2  Johns.  Ch.  141  ; 
and  in  a  case  where  a  child  lived  with  its 
maternal  grandfather,  the  mother  being 
dead,  and  this  was  the  only  grandchild, 
the  grandfather  being  rich,  the  court  re- 
fused to  give  the  custody  of  the  child  to 
the  father,  who  was  insolvent,  although 
the  paternal  grandmother  was  able  and 
willing  to  maintain  it;  upon  the  ground 
that  the  child's  future  prospects  might  be 
injured  by  such  a  decree  :  In  the  matter  of 
Waldron,  13  Johns.  418  ;  and  the  court 
will  give  the  custody  to  the  mother, 
wherever  from  the  relative  habits  and 
situation  of  the  parents,  it  appears  most 
beneficial  to  the  child  to  do  so  :  1  Bush. 
15  ;  it  seems,  also,  that  a  father  will  not 
be  allowed  to  keep  his  child  if  he  cannot 

support  it :  The  People  v. ,  19  Wend. 

16;  but  in  Sandford  v.  Lebanon,  31  Maine 
124,  it  was  decided,  that,  although,  from 
the  inability  of  a  father  to  support  his 
children,  they  had  been  in  the  care  of  the 
overseers  of  the  poor,  as  paupers,  he  did 
not,  thereby,  lose  his  right  to  have  the 
custody  of  them  ;  but  where  the  custody 
of  a  child  was  awarded  to  the  mother,  it 
was  held,  in  the  absence  of  evidence  to 
the  contrary,  at  least  to  relieve  the  father 
from  the  obligation  to  furnish  support 
upon  the  call  of  the  mother :  Burritt  v. 
Burritt,  29  Barb.  124.  In  the  State  of 
Pennsylvania,  if  a  father  cannot  command 
or  control  his  children,  they  may  be  sent 
to  the  House  of  Refuge  :  Ex  parte  Grouse, 
4  Whart.  9.  The  above  doctrines  do  not, 
however,  apply  to  a  stepfather,  who  is 
neither  entitled  tothe  custody  of  his  wife's 


children,    nor   liable    for    their   support : 
Williams  v.  Hutchinson,  3  Comst.  312 

After  the  father,  the  mother  is,  by  law, 
entitled  to  the  custody  of  the  children  : 
Dedham  v.  Nantick,  16  Mass.  135  ;  Night- 
ingale V.  Withington,  15  Id.  272  ;  Miner  v. 
Miner,  11  111.  48  ;  The  Commonwealth  v. 
Fee,  6  S.  &  R.  254;  Armstrong  v.  Stone, 
9  Gratt.  102 ;  and  this  is  the  case,  even 
where  there  is  a  testamentary  guardian  : 
People  V.  Boice,  39  Barb.  307  ;  and  they 
will  not  be  removed  from  her  custody,  on 
the  ground  that  she  lives  with  a  second 
husband,  who  is  profane  and  of  excep- 
tionable morals,  where  the  children  are  in 
other  respects  properly  cared  for  :  Strip- 
lin  V.  Ware,  36  Ala.  87  ;  but  she  may  vest 
this  right  in  another,  when  for  the  child- 
ren's good :  Dumain  v.  Gwynne,  10  Allen 
270  ;  Foster  v.  Alston,  6  How.  (Miss.)  406. 
Where,  however,  both  father  and  mother 
are  persons  of  immoral  character,  the 
court  may,  in  a  dispute  between  them, 
order  a  child  to  be  taken  care  of  by  some 
third  person  :  The  Commonwealth  v.  Nutt, 
1  Browne  143  ;  Adams  v.  Adams,  1  Duvall 
167. 

In  New  York,  in  cases  of  separation,  or 
divorce,  of  man  and  wife,  the  court  is,  by 
statute,  gifted  with  a  discretionary  power 
of  determining  who  shall  have  the  child, 
or  children,  of  the  marriage.  In  Ahren- 
feldt  V.  Ahrenfeldt,  1  Hoff.  Ch.  497,  s.  c. 
4  Sandf.  Ch.  493,  the  vice-chancellor,  in 
commenting  upon  this  statute,  says  :  "  The 
language  of  the  present  act  is,  that  in 
any  suit  brought  by  a  married  woman  for 
divorce,  or  for  a  separation  from  her  hus- 
band, the  court  may,  during  the  pendency 
of  the  cause,  or  at  its  final  hearing,  or 
afterwards,  as  occasion  may  require,  make 
such  order  as  between  the  parties,  for  the 
custody,  care,  and  education  of  the  child- 
ren of  the  marriage,  as  may  seem  neces- 
sary and  proper,  and  may  vary  and  annul 
the  same."  2  Rev.  Stats.  148,  sec.  59.  "  I 
look  upon  this  statute,  especially  where  a 
decree  has  been  pronounced  for  a  separa- 


389 


PERSONAL    ESTATE    aENERALLY. 


to  make  order  for  the  access  of  the  petitioner  to  such  infant,  at  such  time 
and  subject  to  such  regulations  as  shall  be  deemed  convenient  and  just ; 
and,  if  such  infant  shall  be  within  the  age  of  seven  years,  to  made  order 
that  such  infant  shall  be  delivered  to  and  remain  in  the  custody  of  the 
petitioner  until  attaining  such  age,  subject  to  such  regulation  as  shall  be 
deemed  convenient  and  just.  If  adultery  had  been  established  against 
the  mother,  no  order  can  be  made  in  her  favor  under  this  act.(7i) 

The  jurisdiction  anciently  possessed  by  the  ecclesiastical  courts  over 
matrimonial  causes  has  been  transferred  to  a  new  court  called  the  Court 

(A)  Stat.  2  &  3  Vict.  c.  54,  s.  4. 


tion,  as  neutralizing  the  rule  of  the  com- 
mon law ;  as  annulling  the  superiority  of 
the patrise potestas,  and  placing  the  parents 
upon  an  equality  as  to  the  future  custody 
of  the  children,  even  if  it  does  not  create 
a  presumption  in  favor  of  the  wife.  And 
this  is  the  case,  because  no  decree  for 
a  separation  can  be  pronounced,  without 
evidence  of  such  a  violation  of  duty,  in 
one  relation  of  life,  as  implies  a  probability 

of  the  disregard  of  every  other 

Under  our  statute,  this  court  might  make 
the  children  wards  of  the  court,  appoint- 
ing a  guardian  of  their  persons  and  es- 
tates, and  regulating  the  right  of  access  of 
both  parents.  It  seems,  however,  that 
this  power  will  be  exercised,  only  in  cases 
of  a  separation  of  husband  and  wife  by 
judicial  decree,  or  by  mutual  consent ; 
and  not  where  the  wife,  of  her  own 
accord,  without  justifiable  cause,  with- 
draws herself  from  the  protection  of  her 

husband  : "  The  People  v. ,  19  Wend. 

16.  And  see  Barrere  v.  Barrere,  4  Johns. 
Ch.  187;  Cooke  v.  Cooke,  1  Barb.  Ch. 
639  ;  People  v.  Brooks,  35  Barb.  85.  Simi- 
lar statutes  exist  in  the  States  of  Illinois, 
Indiana  and  Iowa:  Miner  v.  Miner,  II  111. 
98;  Tarkington  v.  The  State,  1  Cart.  171. 
And  see  also  on  this  subject,  Hoffman  v. 
Hoffman,  15  Ohio  St.  427  ;  Rice  v.  Rice, 
21  Texas  58  ;  Hunt  v.  Hunt,  4  Greene  216. 
It  would  seem,  also,  that  an  agreement 
between  parents,  upon  a  separation,  as  to 
the  custody  of  their  children,  is  void. 
This  question   was   raised  in  Mercein  v. 


The  People,  25  Wend,  64,  and  was  subse- 
(luently  decided  in  the  negative,  in  the 
same  case,  reported  in  3  Hill  400.  The 
more  recent  suit  of  Cook  v.  Cook,  1  Barb. 
Ch.  639,  decided,  that  such  an  agreement 
can  have  no  effect  upon  the  discretion  of 
the  court,  under  the  New  York  statute. 
The  State  v.  Smith,  6  Greenl.  462,  leans 
to  the  other  side,  but  is  not  decisive. 

The  writ  of  habeas  corpus,  is  for  the  pur- 
pose of  relieving  a  person  from  an  un- 
lawful restraint ;  consequently,  on  such  a 
writ,  the  court  will  not,  in  general,  deter- 
mine who  is  entitled  to  the  guardianship 
of  the  child,  but  will  release  him  from 
illegal  confinement :  In  the  matter  of 
McDowles,  8  Johns.  328 ;  In  the  matter  of 
"WoUstonecraft,  4  Johns.  Ch.  80  ;  Ex  parte 
Schumpert,  6  Rich.  344;  Armstrong  v. 
Stone,  9  Gratt.  102;  Nicholls  ij.  Nicholls, 
3  Duer  642  ;  and  the  child,  being  of  suffi- 
cient age,  will  thus  be  allowed  to  go 
where  he  chooses :  In  the  matter  of  Mc- 
Dowles, 8  Johns.  328 ;  In  the  matter  of 
WoUstonecraft,  4  Johns.  Ch.  80 ;  In  the 
matter  of  Kottman,  2  Hill  (S.  C.)  363 
The  Commonwealth  v.  Hamilton,  6  Mass 
273;  The  State  v.  Stigall  et  al.,  2  Zabr 
286  ;  Ex  parte  Schumpert,  6  Richard 
344;  Armstrong  v.  Stone,  9  Gratt.  102; 
but  if  the  child  is  not  of  sufficient  age  to 
decide  for  itself,  the  court  will  determine 
what  is  for  its  interest.  See  cases  just 
cited,  and  State  v.  Libbey,  44  N.  H.  321 ; 
In  re  Goodenough,  19  Wis.  274;  Demott  v. 
Commonwealth,  64  Penn.  St.  305. 


OF   THE   MUTUAL   RIGHTS   OF   HUSBAND   AND   WIFE.  389 

for  Divorce  and  Matrimonial  Causes,  which  has  been  established  since 
the  eleventh  of  January,  1858.(z)  Instead  of  the  ancient  degree  for  a 
divorce  a  mensa  et  thoro,  a  decree  for  a  judicial  separation  has  been 
substituted,  which  has  the  same  force  and  consequences.(Ar)  The  very 
doubtful  benefit  formerly  enjoyed  only  by  the  richer  classes  of  obtaining 
by  act  of  parliament  a  dissolution  of  the  marriage  with  liberty  to  marry 
again,  is  now  extended  to  all  persons  by  petition  to  the  court. (Z)  A  bene- 
ficial provision  has  however  been  inserted  empowering  a  woman,  who  has 
been  deserted  by  her  husband,  to  apply  to  a  magistrate  or  to  the  court 
or  the  judge  ordinary  *thereof,  for  an  order  to  protect  any  p^qqA-i 
money  or  property  she  may  acquire  by  her  own  lawful  industry,  '-  -^ 
and  property  which  she  may  become  possessed  of  after  such  desertion, 
against  her  husband  or  his  creditors ;  and  in  such  case  her  earnings  and 
her  property,  whether  held  beneficially  or  as  executrix,  administratrix 
or  trustee,  and  whether  in  possession  or  reversion,  will  belong  to  herself 
as  if  she  •were  a  feme  sole.(m)  In  every  case  of  a  decree  either  for  judi- 
cial separation  or  for  the  dissolution  of  the  marriage,  the  court  has  power 
to  order  the  husband  to  secure  to  the  wife  for  her  life  a  separate  main- 
tenance under  the  name  of  alimony,  either  by  annual,  monthly  or  weekly 
payments. (w)  And  in  every  case  of  a  judicial  separation  the  wife  is, 
from  the  date  of  the  sentence  and  whilst  separated,  to  be  considered  as  a 
feme  sole  with  respect  to  her  property,  whether  held  beneficially  or  as 
executrix,  administratrix  or  trustee,  and  also  for  the  purposes  of  con- 
tract, and  wrongs  and  injuries,  and  suing  and  being  sued  in  any  civil 
proceeding ;  and  her  property  may  be  disposed  of  by  her  in  all  respects 
as  a  feme  sole ;  and  on  her  decease  the  same  will,  in  case  she  shall  die 
intestate,  go  as  it  would  have  gone  if  her  husband  had  then  been  dead.(o) 
If,  however,  alimony  has  been  ordered  to  be  paid  to  the  wife,  and  the 
same  shall  not  be  duly  paid  by  the  husband,  he  will  be  liable  for  neces- 
saries supplied  for  her  use.  But  the  wife  may,  during  such  separation, 
join  with  the  husband  in  the  exercise  of  any  joint  power  given  to  herself 
and  him.(p)  And  if  the  wife  should  again  cohabit  with  her  husband,  all 
such  property  as  she  may  be  eniitled  to  when  such  cohabitation  shall  take 

(i)  Stat.  20  &  21  Vict.  c.  85,  amended  by  stats   21  &  22  Vict.  c.  108  ;  22  &  23  Vict.  c.  61. 

{k)  Stat.  20  &  21  Vict.  c.  85,  s.  7.  (l)  Sects.  27,  57. 

(m)  Stat.  20  &  21  Vict.  c.  85,  s.  21,  amended  by  stat.  27  &  28  Vict.  c.  44  ;  21  &  22 
Vict.  c.  108,  ss.  6,.  7,  8,  9,  10;  Re  Kingsley's  Trust,  26  Beav.  84;  Cook  v.  Fuller,  26 
Beav.  99;  Re  Whittingham,  V.-C.  W.,  10  Jur.  N.  S.  818. 

(«)  Stats.  20  &  21  Vict.  c.  85,  ss.  24,  32  ;  29  Vict.  c.  32. 

(o)  Stat.  20  &  21  Vict.  c.  85,  ss.  25,  26;  21  &  22  Vict.  c.  108,  s.  7  ;  Ro  Insole, 
35  Beav.  92, 

{p)  Stat.  20  &  21  Vict.  c.  85,  s.  26. 
31 


390  OF    PERSONAL    ESTATE    GENERALLY. 

r*QQn  P^''^C'^5  shall  be  held  to  *her  separate  use,  subject,  however,  to  any 
•-  -'  agreement  in  writing  made  between  herself  and  her  husband 

whilst  separate. (<jr)  In  every  case  of  a  suit  for  judicial  separation  or  for 
nullity  or  dissolution  of  marriage,  the  court  or  the  judge  ordinary  is  em- 
powered either  before  or  after  its  final  decree,  to  make  provision  with  respect 
to  the  custody,  maintenance  and  education  of  the  children  of  the  marriage, 
or  for  placing  the  children  under  the  protection  of  the  Court  of  Chan- 
cery.(r)  Whenever  the  court  shall  pronounce  a  sentence  of  divorce  or 
judicial  separation  for  adultery  of  the  wife,  it  has  poAver  to  order  a  settle- 
ment to  be  made  of  her  property,  whether  in  possession  or  reversion,  for 
the  benefit  of  the  innocent  party  and  the  children  of  the  marriage,  or 
either  or  any  of  them.(s)  And  any  instrument  executed  pursuant  to  any 
order  of  the  court  made  under  this  enactment,  at  the  time  of  or  after  the 
pronouncing  of  a  final  decree  of  divorce  or  judicial  separation,  shall  be 
deemed  valid  and  efi'ectual  in  the  law,  notwithstanding  the  existence  of 
the  disability  of  coverture  at  the  time  of  the  execution  thereof.(^)  And 
after  a  decree  of  nullity  or  dissolution  of  marriage,  the  court  may  inquire 
into  the  existence  of  antenuptial  or  postnuptial  settlements  made  on  the 
parties  whose  marriage  is  the  subject  of  the  decree,  and  may  make  such 
order  with  reference  to  the  application  of  the  whole  or  a  portion  of  the 
property  settled,  either  for  the  benefit  of  the  children  of  the  marriage 
or  of  their  respective  parents,  as  to  the  court  shall  seem  fit.(M)  But  this 
provision  does  not  appear  to  apply  if  there  be  no  child  of  the  marriage 
living  at  the  date  of  the  order. (.-r) 

.-.^^^-,        *A  comparison  of  the  laws  of  husband  and  wife  relatino;  to 

r  39^1 

'-       ""-^    real  estate,  with  those  which  afiect  personal  property,  will  show 

a  great  discrepancy  between  them.  Historically,  no  doubt,  this  dis- 
crepancy is  easily  accounted  for  ;  but  practically,  as  things  now  exist, 
it  is  not  so  easy  to  give  a  satisfactory  reason  for  the  difference.  Since 
the  intended  amendment  of  the  law  relating  to  dower,  the  wife's  rights 
in  her  husband's  real  estate  have,  for  the  satisfaction  of  conveyancers, 
been  reduced  to  as  low  a  level  as  her  rights  in  his  personalty.  But  the 
husband's  rights  in  his  wife's  property  still  materially  vary,  according  as 
it  may  happen  to  be  invested  in  real  or  in  personal  estate.  If  it  con- 
sist of  real  estate,  he  has  only  a  life  interest  as  tenant  by  the  curtesy, 

(q)  Stat.  20  &  21  Vict.  c.  85,  s.  25.  (r)  Sect.  35  ;  22  &  23  Vict.  c.  61,  s.  4. 

(*)  Sect.  45. 

{i)  Stat.  23  &  24  Vict.  c.  144,  s.  6,  made  perpetual  by  stat.  25  &  26  Vict.  c.  81. 
(u)  Stat.  22  &  23  Vict.  c.  61,  s.  5. 

(z)  Thomas  v.  Thomas,  2  Sw.  &  Tr.  89  ;    Corrance  v.  Corrance,  16  W.  R.  893  ;    Law 
Rep.  1  P.  &  D.  495  ;  Graham  v.  Graham,  17  W.  R.  628. 


OF   THE    MUTUAL    RIGHTS    OF   HUSBAND    AND   WIFE.  392 

provided  he  has  issue  by  his  wife  born  alive,  who  might  by  possibility  in- 
herit as  her  hcir.(?/)  If  it  be  personal  estate,  he  has  a  right  to  appro- 
priate to  himself  all  that  he  can  lay  hands  on.  Again,  the  real  estate 
of  the  wife  is  guarded  from  alienation  by  the  most  careful  provisions. 
Formerly  the  fictitious  and  cumbersome  machinery  of  a  fine  was  requi- 
site ;  and  now  every  conveyance  of  her  real  estate  must  be  not  only 
signed  by  her,  but  also  acknowledged  by  her  before  commissioners,  apart 
from  her  husband,  as  her  own  act  and  deed.(2;)^  Recently  the  same  prin- 
ciple has  been  applied  to  the  release  of  her  equity  to  a  settlement,  and 
to  the  assignment  of  her  reversionary  interests. (a)  But,  in  all  cases 
not  within  the  act  for  these  purposes,  the  assignment  of  her  personal 
estate,  if  made  at  all,  can  only  be  made  by  her  husband  ;  and  her  con- 
currence or  objection  is  quite  immaterial.  When  personal  estate  consists 
of  mere  movable  articles,  the  nature  of  the  ^property  no  doubt  pggg-i 
affords  a  sufficient  reason  for  the  difference  between  the  laws  L 
which  dispose  of  it,  and  those  which  regulate  estates  in  fixed  and  im- 
movable landed  property.  But  when  personalty  assumes  the  form  of 
such  solid  investments  as  mortgages  or  consols,  when  it  becomes  like  land 
disposable  by  deed  rather  than  by  delivery,  the  laws  which  affect  it  should 
rather  depend  on  its  present  nature  than  on  its  past  history.  It  seems 
hardly  fair  that  a  married  woman  should  have  no  voice  in  the  disposition 
of  property  of  this  kind  belonging  to  herself.  At  the  same  time,  the 
present  system  of  taking  her  acknowledgment  on  a  conveyance  of  her 
real  estate  is  often  found  to  be  a  burdensome  expense  without  any  prac- 
tical benefit.  For  if  a  husband  can  persuade  his  wife  to  sign  a  deed,  he 
can  easily  prevail  on  her  to  make  an  acknowledgment  before  two  com- 
missioners, notwithstanding  that  during  the  two  minutes  which  the  trans- 
action lasts  she  may  remain  "separate  and  apart"  from  him.  If,  when- 
ever the  wife's  property  of  any  kind  should  be  alienated  by  deed,  her 
signature  were  necessary,  but  her  separate  examination  were  dispensed 
with,  the  law  both  of  personal  and  real  estate  would  perhaps  be  improved. 

(jj)  See  Principles  of  the  Law  of  Real  Property  167,  1st  ed.  ;  177,  2d  ed.  ;  184,  3d  ed. ; 
185,  4th  ed. ;  193,  5th  ed. ;  203,  6th  ed.  ;  209,  7th  ed.  ;  218,  8th  ed. 

(z)  Ibid.  171,  1st  ed.  ;  181,  2d  ed.  ;  188,  3d  ed.  ;  189,  4th  ed.  ;  197,  5th  ed. ;  207,  6th 
ed. ;   213,  7th  ed. ;  222,  8th  ed. 

(a)  Stat.  20  &  21  Vict.  c.  57  ;  ante  p.  379. 


1    In    general,    throughout   the    United  alderman,  notary  or  justice  of  the  peace,  as 

States,  the  acknowledgment  of  a  married  the  case  may  be.  The  method  in  which  this 

woman  to  a  deed  conveying  her  real  es-  is  to  be  done,  is  pointed  out  with  precision 

tate,  is  to  be  taken  separate  and  apart  from  in  the  statutes  of  each  State, 
her  husband,  by  a  judge,   commissioner. 


393  OF   PERSONAL    ESTATE   GENERALLY. 

The  Court  of  Chancery,  by  the  establishment  of  trusts  for  separate  use, 
and  by  giving  the  wife  an  equity  to  a  settlement  of  part  of  her  personal 
property  Avhen  claimed  through  the  medium  of  that  court,  has  done  much 
to  mitigate  the  simple  rigor  of  the  common  law.  Trusts  for  separate 
use  are  now,  after  much  wavering,  firmly  settled,  it  is  to  be  hoped,  into 
a  system  according  both  with  the  interests  of  the  community  and  the 
general  principles  of  the  law.  Such  trusts,  however,  generally  require 
to  be  established  by  deed  or  will,  and  are  very  seldom  implied.  And  the 
wife  cannot  assert  her  equity  to  a  settlement  without  taking  the  serious 
step  of  making  an  application  to  the  Court  of  Chancery.  The  theory  of 
that  court  certainly  *is,  that  its  assistance  is  free  and  open  to 
[*3J4]  gyerybody,and  that  those  who  neglect  to  avail  themselves  of  its 
aid  suffer  by  their  own  fault.  Experience,  however,  is  too  apt  to  suggest 
that  the  remedy  may  sometimes  prove  worse  than  the  disease. 


*PART  V.  [*395] 

OF    TITLE. 


The  title  to  personal  estate  varies  according  as  it  may  consist  of 
money  or  negotiable  securities,  or  of  ordinary  choses  in  possession,  or  of 
choses  in  action. 

And,  first,  with  regard  to  money  or  negotiable  securities,  no  title  at 
all  is  required  to  be  shown  by  the  payer  in  any  bond  fide  transaction. 
Thus,  if  a  sovereign  or  a  bank  note  be  offered  in  payment  of  a  debt,  it  is 
no  part  of  the  duty  of  the  creditor,  under  ordinary  circumstances,  to  ask 
the  debtor  how  he  came  by  it.  The  reason  of  this  rule  is  founded  on 
the  currency  of  the  articles  in  question,  and  on  the  great  inconvenience 
to  trade  and  commerce  which  would  ensue  if  the  rule  were  otherwise.(«)' 
And  the  rule  applies  to  all  negotiable  securities,  that  is,  to  all  instru- 
ments the  delivery  of  which  passes  the  legal  right  to  the  property  secured 
by  them.  Promissory  notes  and  bills  of  exchange  payable  to  bearer,  or 
payable  to  order,  and  endorsed  in  blank,  are  accordingly  within  the 
rule.(6)  But  if  there  be  any  mala  fides  on  the  part  of  the  person  re- 
ceiving any  money  or  negotiable  security,  or  such  gross  negligence  as 
may  amount  in  itself  to  evidence  of  mala  fides,  the  true  owner  may 
recover  such  property,  provided  its  identity  can  be  ascertained. ((?)^     A 

(a)  Miller  v.  Race,  1  Burr.  452  ;  1  Smith's  Leading  Cas.  250. 

(6)  Grant  v.  Vaughan,  3  Burr.  1516;  Peacock  v.  Rhodes,  2  Doug.  333;  see  ante^ 
p.  85. 

(c)  Clarke  v.  Shee,  Cowp.  197  ;  Foster  v.  Pearson,  1  C.  M.  &  R.  849  ;  s.  c.  5  Tyrw. 
255  ;  Goodman  v.  Harvey,  4  Ad.  &  E.  870  (E.  C.  L.  R.  vol.  31). 


1  See  Mauran  v.  Lamb,  7    Cowen    174;  545;  Aldrich   v.    Warren,    16   Maine   465; 

Pearce  V.  Austin,  4  Wheat.  489;  Barbarin  Lapice   v.   Clifton,  17  La.   152;  Munroe  v. 

V.  Daniels,  7  La.  481 ;  Denton  v.  Duplessis,  Cooper,  5  Pick.  412  ;  Story  on  Bills  215; 

12  Id.  92;  Hill  v.  Holmes,  Id.  96;  Cruger  Story  on  Promissory  Notes  465,  469,  470; 

V.  Armstrong,  3  Johns.  Cas.  5  ;  Conroy  v.  Hoffman  v.  Foster  &  Co.,  43  Penn.  St.  137  ; 

Warren,  Id.  259  ;   Thurston  v.  McKown,  6  Paulette  v.  Brown,  40  Misso.  52  ;  Benior 

Mass.   428;    Wheeler  v.  Guild,    20   Pick.  v.  Paquin,  40  Vt.  199;  Turnbull  v.  Bou- 


395 


OF   TITLE. 


[*396] 


delivery  order  does  not  of  itself  pass  *tlie  property  in  the  goods 


mentioned  in  it ;  it  is  therefore  not  a  negotiable  security  within 
the  rule  above  mentioned;  and  the  transferee  is  accordingly  bound  to 
in(|uire  into  the  title  of  the  transferor. (t^) 

With  regard  to  ordinary  choses  in  possession,  a  valid  title  to  them  is 
generally  obtained  by  a  purchase  in  an  open  market,  or  market  overt^ 
although  no  property  may  have  been  possessed  by  the  vendor.(e)'     And 


{d)  Kingsford  v.  Merry,  1  H.  &  N.  503. 


(«)   2  Black.  Com.  449. 


yer,  2  Rob.  (N.  Y.)  406;  Winstead  v.  Davis, 
40  Miss.  785 ;  Lane  v.  Krekle,  22  Iowa 
399  ;  Belmont  Branch  Bank  v.  Hoge,  35  N. 
Y.  G5.  Where  strong  circumstances  of 
fraud  in  the  origin  of  the  instrument  have 
been  shown,  the  holder  should  show  that 
he  gave  value  for  it :  Smith  v.  Sac  County, 
1 1  Wallace  (U.  S.)  139.  Not  having  paid  a 
fair  and  reasonable  price,  is  evidence  of 
mala  fides:  Baily  v.  Smith,  14  Ohio  St. 
396  ;  De  Witt  v.  Perkins,  22  Wis.  473  ;  al- 
though not  conclusive  :  Brown  v.  Penfield, 
36  N.  Y.  473;  but  in  the  absence  of  all 
proof,  good  faith  and  a  consideration 
given  will  be  presumed  :  Lathrop  v.  Don- 
aldson, 22  Iowa  234.  The  doctrine,  that 
possession  ;;arries  with  it  the  evidence  of 
property,  so  as  to  protect  a  person  acquir- 
ing it  in  the  usual  course  of  trade,  is  lim- 
ited to  cash,  bank  bills,  and  bills  payable 
to  bearer:  Saltus  et  al.  v.  Everett,  20 
Wend.  268;  and  the  securities  commonly 
called  coupon  bonds.  See,  also,  County 
of  Beaver  v.  Armstrong,  44  Penn.  St.  63  ; 
Murray  v.  Lardner,  2  Wallace  (U.  S.)  110  ; 
Mercer  County  v.  Hacket,  1  Id.  83  ; 
Gelpcke  v.  City  of  Dubuque,  Id.  175; 
Meyer  v.  City  of  Muscatine,  Id.  384 ;  note 
1,  ante^  pp.  5  and  26. 

1  There  are  no  markets  overt  in  the 
United  States :  Hosack  v.  Weaver,  1 
Yeates  478  ;  Hardy  v.  Metzgar,  2  Id.  347  ; 
Eastoa  v.  Worthington,  5  S.  &  R.  130; 
Lecky  ?>.  McDermott,  Admr.,  8  Id.  500 ; 
Mowry  et  al.  v.  Walsh,  8  Cowen  238 ; 
Wheelright  v.  Depeyster,  I  Johns.  480; 
Dane  v.  Baldwin,  8  Mass.  518;  Browning 
V.  Magill,  2  Har.  &  Johns.  308  ;  McGrew  v. 
Browder,  2  Condeus.  Rep.  S.  C.  La.  579; 
Roland  v.  Grundy,  5  Ohio  202  ;  Griffith  i-. 


Fowler,  18  Vt.  390;  Worthy  et  al.  v. 
Johnson  et  al.,  8  Geo.  236 ;  Hoffman  et  al. 
V.  Carow,  22  Wend.  285;  Fawcett  v.  Os- 
born,  32  Ills.  411.  For  the  general  rule 
regulating  this  matter  is,  that  a  second 
vendee  is  not  entitled  to  stand  in  any  bet- 
ter position  than  his  vendor,  in  regard  to 
the  title  of  personal  property;  but  this 
rule  is  not  applicable  to  negotiable  instru- 
ments :  Putnam  v.  Lamphier,  36  Cal.  151. 
In  the  case  of  Vcntress  et  al.  v.  Smith,  10 
Peters  175,  Judge  Thompson  said  :  "  It  is 
a  general  rule  of  law,  that  a  sale  by  a  per- 
son who  has  no  right  to  sell,  is  not  valid 

against  the  rightful  owner It  was 

a  maxim  of  the  civil  law,  that  7icmo  plus 
juris  in  alium  transferre  potest^  quam  ipse 
habet ;  and  this  is  a  plain  dictate  of  com- 
mon sense.  It  was  a  principle  of  the 
English  common  law,  that  a  sale  out  of 
market  overt,  did  not  change  the  property 
from  the  rightful  owner;  and  the  custom 
of  the  city  of  London,  which  forms  an  ex- 
ception to  the  general  rule,  has  always 
been  guarded  and  restricted  by  the  courts 
with  great  care  and  vigilance,  that  all 
such  sales  should  be  brought  strictly 
within  the  custom.  It  has  sometimes 
been  contended,  that  a  bonci  fide  purchase 
for  a  valuable  consideration,  and  without 
notice,  was  equivalent  to  a  purchase  in 
market  overt  under  the  English  law,  and 
bound  the  property  against  the  party  who 
had  the  right.  But  we  are  not  aware  that 
this  Sa.\on  institution  of  markets  overt, 
which  controls  and  interferes  with  the  ap- 
plication of  the  common  law,  has  ever 
been  recognised  in  an^^  of  the  United 
States,  or  received  any  judicial  sanction." 


OF   TITLE.  396 

every  shop  in  the  city  of  London,  where  goods  are  openly  sold,  is  con- 
sidered as  a  market  overt  Avithin  this  rule,  for  such  things  as  by  the 
trade  of  the  owner  are  put  there  for  sale.(/)  But  the  shops  at  the  west 
end  of  the  town  do  not  appear  to  possess  this  privilege.  If  the  sale  is 
not  made  in  market  overt,  the  purchaser,  though  he  purchase  bond  fide, 
acquires  no  further  property  in  the  article  sold  than  was  possessed  by 
the  vendor.((/)  And  formerly,  if  a  writ  of  execution  should  have  been 
actually  in  the  hands  of  the  sheriff  on  a  judgment  against  the  vendor,  the 
goods,  if  not  sold. in  market  overt,  were  subject,  in  the  hands  of  the  pur- 
chaser, to  the  sheriff's  right  to  seize,  in  the  same  manner  as  if  they  had 
remained  in  the  hands  of  the  vendor.(/i)  But  a  recent  enactment  now 
protects  a  purchaser  bond  fide  for  valuable  consideration,  without  notice 
of  any  writ.(z')  So  if  the  goods  have  been  stolen,  a  bond  fide  purchaser, 
who  has  not  bought  them  in  market  overt,  will  be  bound  to  restore  them 
to  the  true  owner  ;(y)  whereas,  a  sale  in  market  overt  would  have  given  the 
*purchaser  a  valid  title.  There  is  one  case,  however,  in  which  r*oQ'7-i 
even  a  sale  in  market  overt  will  not  protect  a  purchaser,  namely, 
the  case  of  the  goods  having  been  stolen,  and  the  true  owner  prosecuting 
the  thief  and  obtaining  his  conviction.  In  this  case  the  property  in  the 
goods,  wherever  they  may  be,  vests,  on  the  conviction,  in  the  true 
owner  ;(k)  and  the  only  exception  allowed  is,  where  the  article  stolen  is 
some  valuable  security,  which  shall  have  been  paid  or  discharged  bo7id 
fide  by  the  person  liable,  or  being  a  negotiable  instrument,  shall  have 
been  bond  fide  transferred  or  delivered  for  a  just  and  valuable  considera- 
tion, without  any  notice,  and  without  any  reasonable  cause  to  suspect 
that  the  same  had  been  obtained  by  any  felony  or  misdemeanor. (Z)  If  a 
person  suifer  the  loss  of  his  goods  by  theft,  he  cannot  by  any  civil  action 
recover  them  from  the  felon. (w)  To  do  this,  he  is  bound  to  suffer 
the  further  loss  of  time  or  money  incurred  in  a  prosecution.  If  he 
should  succeed  in  obtaining  a  conviction,  he  is  then  rewarded  for  his 
good  fortune  by  a  restitution  of  his  property,  whether  in  the  hands  of 
the  felon  himself,  or  of  any  innocent  purchaser  who  may  have  chanced 

(/)  The  Case  of  Market  Overt,  5  Rep.  83  b  ;  Lyons  v.  De  Pass,  11  Ad.  &  E.  326  (E.  C. 
L.  R.  vol.  39). 

(ff)  Peer  v.  Humphrey,  2  Ad.  &  E.  495  (E.  C.  L.  R.  vol.  29) ;  White  v.  Spettigne,  13 
M.  &  W.  603. 

(h)  Samuel  v.  Duke,  3  M.  &  W.  622.     See  ante,  p.  51. 

(i)  Stat.  19  &  20  Vict.  c.  97,  s.  1,  ante,  p.  52,  not  retrospective.  Williams  v.  Smith, 
2  H.  &  N.  443. 

(y)  White  V.  Spettigue,  13  M.  &  W.  603. 

(k)  Scattergood  v.  Sylvester,  15  Q.  B.  506  (E.  C.  L.  R.  vol.  69). 

(1)  Stat.  7  &  8  Geo.  IV.  c.  29,  s.  57. 

{m)  Stone  v.  Marsh,  6  B.  &  C.  551,  564  (E.  C.  L.  R.  vol.  13) ;  2  Wms.  Saund.  47  b, 
n.  {p). 


397 


OF   TITLE. 


to  buy  them,  although  in  open  market.^     Such  is  the  application  made  by 
the  law  of  the  righteous  principle  of  restitution.(M) 

With  regard  to  horses,  a  sale  in  market  overt  will  not  confer  on  the 
purchaser  any  further  title  than  is  possessed  by  the  vendor,  unless  the 
sale  be  made  according  to  the  directions  of  certain  statutes  ;{o)  and  even 
P^oQQ,  then  the  true  owner  may,  at  any  time  within  six  *months  after 
'-  -■  his  horse  has  been  stolen,  recover  his  property  on  tender  to  the 
person  in  possession  of  the  price  he  bond  fide  paid  for.  it. (p) 

A  factor  or  agent  in  the  possession  of  goods  could  not  by  the  common  law 
give  any  further  title  to  the  goods  than  he  was  authorized  to  do  by  his 
principal,  either  expressly  or  by  implication  arising  from  the  usual  course 
of  his  employment.(5)  And  when  one  man  is  appointed  the  agent  of 
another  for  any  particular  purpose  by  power  of  attorney,  his  authority 
must  still  be  strictly  pursued,  otherwise  his  principal  will  not  be  bound. (rf 

(n)  See  Chowne  v.  Baylis,  31  Beav.  351. 

(o)  Stats.  2  &  3  P.  &  M.  c.  7  ;  31  Eliz.  c.  12 ;  2  Black.  Com.  450. 

{p)  Stat.  31  Eliz.  c.  12,  s.  4.  (q)  Pickering  v.  Busk,  15  East  38,  43. 

(r)  Attwood  V.  Mannings,  7  B.  &  C.  278  (E.  C.  L.  R.  vol.  14). 


1  Bell  I'.  Troy,  35  Ala.  184 ;  and  see  Pis- 
cataqua  Bank  v.  Turnley,  1  Miles  314, 
which  decided,  that  where  one  had  stolen 
a  quantity  of  bank  notes,  the  bank  could 
not  maintain  foreign  attachment  against 
him,  because  the  foundation  of  the  claim 
was  matter  ez  delicto  ;  and  in  the  compara- 
tively recent  case  of  Hutchinson  v.  Bank 
of  Wheeling,  41  Penn.  St.  42,  it  was  held, 
that  the  public  prosecution  for  the  theft, 
does  not  supersede  or  in  any  way  control, 
the  private  action  for  the  value  of  the 
thing  stolen,  though  it  is  suspended  until 
the  public  prosecution  for  the  offence,  has 
been  duly  conducted  and  ended;  and  as 
the  person  wronged  by  the  theft  is  not 
chargeable  with  the  conduct  of  the  prose- 
cution, he  cannot  be  affected  by  the  result, 
even  though  it  be  a  verdict  of  acquittal. 
But  in  New  York,  the  doctrine  that  the 
private  injury  is  merged  in  the  public 
wrong,  is  abolished  by  statute  ;  see  a  note 
to  the  case  of  Hoffman  et  al.  v.  Carow,  22 
Wend.  285. 

*  "  That  an  agent  is  bound  to  pursue  the 
orders  of  his  principal,  and  is  answerable 
for  any  injury  consequent  on  his  depar- 


ture from  them,  however  fair  may  have 
been  his  motives  for  such  departure,  is  a 
plain  principle  of  law :"  Manella,  Pujalls 
&  Co.  y.  Barry,  3  Cranch  415;  Keener  t>. 
Harrod  et  al.,  2  Md.  63 ;  Bruce  v.  Daven- 
port, 3G  Barb.  349 ;  Imboden  v.  Richardson, 
15  La.  Ann.  534;  Sawyer  v.  Mayhew,  51 
Maine  398 ;  nor  will  the  principal  be  bound 
for  his  acts,  whether  the  agency  be  general 
or  special,  if  it  was  known  to  the  party 
with  whom  he  dealt,  that  the  agent  was  ex- 
ceeding his  powers:  Sandford  v.  Handy, 
23  Wend.  260 ;  State  of  Illinois  v.  Dela- 
field,  8  Paige  Ch.  527  ;  Fox  v.  Fisk,  6  How. 
(Miss.)  328;  Longworth  v.  Conwell,  2 
Blackf.  469  ;  Walsh  et  al.  v.  Peirce,  12  Vt. 
138  ;  Hemphill  v.  The  Bank,  6  Sm.  &  M. 
44;  Goad  v.  Hurts's  Admrs.,  8  Id.  787; 
Robertson  v.  Ketchum,  11  Barb.  652; 
Reeves  et  al.  v.  Baldwin,  1  Cart.  216; 
McCoy  V.  McKowen,  Admr.,  26  Miss.  487; 
Lewin  v.  Delie  et  al.,  17  Id.  64;  North 
River  Bank  v.  Aymar,  3  Hill  266 ;  Bank 
of  the  United  States  v.  Dunn,  6  Peters  51 
Bank  of  the  Metropolis  v.  Jones,  8  Id.  12 
Angel  V.  The  Town  of  Pownal,  3  Vt.  461 
Huntington  et  al.  v.  Wilder,  6  Id.  334. 


OF   TITLE. 


398 


But  by  modern  acts  of  parliament  a  more  extended  authority  has,  for  the 
convenience  of  commerce,  been  conferred  on  factors  and  agents. (s)     The 

(s)  Stats.  4  Geo.  IV.  c.  83  ;  6  Geo.  IV.  c.  94;  5  &  6  Vict.  c.  39. 


A  special  agent  is  one  who  is  employed 
about  one  specific  act,  or  certain  specific 
acts,  alone  :  Walker  v.  Skipwith,  1  Meigs 
507  ;  Bryant  v.  Moore,  26  Maine  86 ;  a 
general  agency,  however,  is  not  the  reverse 
of  this,  and  does  not  mean  the  substituting 
one  in  the  place  of  another,  for  transacting 
all  manner  of  business,  since  there  are 
few  instances  in  common  use  of  an  agency 
of  that  description,  but  is  an  authority  not 
unlimited,  and  must  necessarily  "  be  re- 
strained to  the  transactions  and  concerns, 
appurtenant  to  the  business  of  the  princi- 
pal :"Odiorne  et  al.  V.  Maxcy  et  al.,  13 
Mass.  181  ;  Salem  Bank  v.  Gloucester 
Bank,  17  Id.  29  ;  Walker  v.  Skipwith,  1 
Meigs  507  ;  Anderson  v.  Coonley,  21  Wend. 
279  ;  Rossiter  v.  Rossiter,  8  Id.  494  ;  Stowe 
et  al.  V.  Wyse,  7  Conn.  214;  Hodge  v. 
Combs,  1  Black  (U.  S.)  192  ;  Stevenson  et 
al.  V.  Hoy,  43  Penn.  St.  191  ;  but  a  general 
agent,  is  one  whom  a  man  puts  in  his 
place,  to  transact  all  his  business  of  a  par- 
ticular kind  :  Loudon,  &c.,  Soc.  v.  Hagers- 
town,  &c..  Bank,  36  Penn.  St.  498. 

A  distinction  is  to  be  noticed  between 
general  and  special  agencies,  as  regards 
third  persons ;  for  although  in  the  former 
an  attorney  in  fact  will  be  responsible  to 
his  principal,  if  he  exceeds  any  private 
instructions  which  may  be  given  limiting 
his  general  powers,  yet  the  persons  with 
whom  he  deals  will  not  be  bound  bj'  such 
private  instructions,  for  they  cannot  be 
supposed  to  know  anything  about  them  : 
Lobdel  V.  Baker,  1  Mete.  193 ;  Mann  v. 
The  Commis.  Co.,  15  Johns.  54  ;  Beals  v. 
Allen,  18  Johns.  363;  Allen  v.  Ogden,  1 
Wash.  C.  C.  174;  Gordon  et  al.  v.  Bu- 
chanan et  al.,  5  Yerg.  71;  Rossiter  v. 
Rossiter,  8  Wend.  494  ;  Tradesman's  Bank 
V.  Astor  et  al.,  11  Id.  90  ;  Jaques  v.  Todd, 
3  Id.  83;  Fisher  et  al.  v.  Campbell,  9 
Port.  213  ;  Longworth  v.  Conwell,  2  Blackf. 
469 ;  Morrison's  Exr.  v.  Taylor,  6  B.  Mon. 
85  ;  Johnson  v,  Jones,  4  Barb.  369 ;  Walsh 


et  al.  V.  Peirce,  12  Vt.  138  ;  Gibbs  et  al.  v. 
Linsley,  13  Id.  208  ;  Arnold  et  al.  v.  Hal- 
enbrake  et  al.,  5  Wend.  34 ;  Bryant  v. 
Moore,  26  Maine  86 ;  Lamothe  v.  St.  Louis 
Marine  Railway  and  Dock  Co.,  17  Mo. 
204;  Lightbody  v.  The  N.  A.  Ins.  Co. 
23  Wend.  22  ;  Lance  v.  Barrett,  1  Hill  (S. 
C.)  204  ;  Lagow  v.  Patterson.  1  Blackf. 
252  ;  Loudon,  &c.,  Soc.  v.  Hagerstown,  &c.. 
Bank,  36  Penn.  St.  498  ;  Williams  v.  Getty, 
31  Id.  461;  Baltimore  v.  Reynolds,  20  Md. 
1;  Davenport  v.  Ins.  Co.,  17  Iowa  276; 
Edwards  v.  Schaifer,  49  Barb.  291  ;  Butler 
V.  Maples,  9  Wall.  U.  S.  766  ;  whereas  in 
special  agency,  the  authority  must  be 
strictly  pursued,  or  the  principal  will  not 
be  bound  :  Schimmelpenich  et  nl.v.  Bayard 
et  al.,  1  Peters  264;  Andrews  v.  Kneeland, 
6  Cowen  354  ;  Lightbody  v.  The  N.  Ameri- 
can Ins.  Co,,  23  Wend.  22  ;  Lobdell  v. 
Baker,  1  Mete.  193 ;  Anderson  v.  Coonley, 
21  Wend.  279  ;  Mann  v.  The  Commis.  Co., 
15  Johns.  54  ;  Beals  v.  Allen,  18  Id.  363  ; 
Thompson  v.  Stewart,  3  Conn.  183  ;  Allen 
V.  Ogden,  1  Wash.  C.  C.  174;  Bleene  v. 
Proudfit,  3  Call  207  ;  Gordon  et  al.  v. 
Buchanan  et  al.,  5  Yerg.  71  ;  Rossiter  y. 
Rossiter,  8  Wend.  494 ;  Tradesmen's  Bank 
V.  Astor  et  al.,  11  Wend.  90;  Denning  v. 
Smith,  3  Johns.  Ch.  344;  State  of  Illinois 
V.  Delafield,  8  Paige  Ch.  527 ;  Jaques  v. 
Todd,  3  Wend.  83  ;  Fisher  et  al.  v.  Camp- 
bell, 9  Port.  213;  Dresser  Manufacturing 
Co.  V.  Waterston  et  al.,  3  Mete.  18  ;  Cowan 
V.  Adams  et  al.,  10  Maine  374;  Morrison's 
Exr.  V.  Taylor,  6  B.  Mon.  85  ;  Lance  v. 
Barrett,!  Hill(S.C.)  204;  Lagow j;. Patter- 
son, 1  Blackf.  252  ;  Thorndike  v.  Godfrey, 

3  Greenlf.  431 ;  Dehart,  &c.,  v.  Wilson,  &c., 
6  Mon.  581 ;  Admrs.  of  Mitchell  et  al.  v. 
Sproul,  5  J.  J.  Marsh.  267  ;  Powell  v.  Buck, 

4  Strobh.  427  ;  Scott  v.  McGrath,  7  Barb. 
53;  Reany  v.  Culbertson,  21  Penn.  St. 
507 ;  Shepley  v.  Little,  6  Watts  500  ;  Par- 
sons V.  Webb,  8  Greenl.  38  ;  Stewart  v. 
Donnelly,  4  Yerg.   177;  Snow  v.  Perry,  9 


398 


OF   TITLE. 


provisions  of  these  acts  are  too  long  to  be  here  inserted  ;  but  their  general 
effect  is  to  render  valid  sales  and  pledges  made  by  factors  or  agents,  not- 


Pick.  539  ;  Arnold  et  al.  v.  Hallenbrake  et 
al.,  5  Wend.  34 ;  Pursley  ?'.  Morrison,  1 
Ind.  356  ;  and  one  dealing  with  a  special 
agent  is  bound  to  inquire,  and  ascertain 
the  extent  of  his  authority:  Schimmelpe- 
nich  et  al.  v.  Bayard  et  al.,  1  Peters  2G4  ; 
Snow  V.  Perry,  9  Pick.  539  ;  Fisher  et  al. 
V.  Campbell,  9  Port.  213;  Murdock  v.  Mills 
et  al.,  11  Mete.  5;  Powell  v.  Buck,  4 
Strobh.  42V;  Powell  v.  Henry,  2T  Ala. 
612;  Tidrick  «.  Rice,  13  Iowa  214;  Berry 
V.  Anderson,  22  Ind.  36  ;  particularly  where 
one  is  acting  in  a  public  capacity,  or  as 
the  representative  of  a  corporation,  for 
then  the  limit  of  his  power  may  be  readily 
ascertained  by  a  reference  to  statute  or 
records :  Salem  Bank  v.  Gloucester  Bank, 
17  Mass.  29;  Bryant  v.  Moore,  26  Maine 
86;  Denning  v.  Smith,  3  Johns.  Ch.  344; 
Baltimore  v.  Eschbach,  18  Md.  276  ;  Murray 
V.  Carothers,  1  Mete.  (Ky.)  171  ;  State  v. 
Haskell,  20  Iowa  276  ;  but  even  in  the  case 
of  a  limited  agency,  the  deputy  may  have 
a  general  authority  to  accomplish  the  pur- 
pose for  which  he  was  created,  "  or  be 
limited  to  do  it  in  a  particular  manner. 
If  the  limitation,  respecting  the  manner 
of  doing  it,  be  public,  or  known  to  the 
person  witk  whom  he  deals,  the  principal 
will  not  be  bound,  if  the  instructions  are 
exceeded  and  violated.  If  such  limitation 
be  private,  the  agent  may  accomplish  the 
object  in  violation  of  his  instructions,  and 
yet  bind  his  principal  by  his  acts:"  Bryant 
V.  Moore,  26  Maine  86  ;  Hotch  v.  Taylor, 
10  N.  H.  538  ;  WaJker  v.  Skip  with,  1  Meigs 
507  ;  Lightbody  v.  The  N.  A.  Ins.  Co.,  23 
Wend.  22  ;  N.  River  Bank  v.  Aymar,  3  Hill 
266  ;  and  if  the  principal  has  by(  his  decla- 
rations, given  rise  to  the  opinion,  that  he 
has  granted  greater  powers  than  have  in 
fact  been  given,  he  will  not  be  allowed  to 
avail  himself  of  the  imposition,  to  ward 
oS' responsibilities  which  have  arisen  from 
his  representations  :  Schimmelpenich  et 
al.  V.  Bayard  et  al.,  1  Peters  264  ;  Perkins 
V.  The  Washington  Insurance  Co.,  4  Cowen 
645;  Dodge  v.  McDonnell,  14  Wis.  553. 


In  accordance  with  the  above  princi- 
ples, it  has  been  held,  that  a  factor  cannot 
pledge  the  goods  of  his  principal :  Kinder 
et  al.  V.  Shaw  et  al.,  2  Mass.  398  ;  Van 
Amringe  v.  Peabody  et  al.,  1  Mass.  440  ; 
Rodrighez  v.  Hofferman  et  als.,  5  Johns. 
Ch.  417;  Evans  v.  Potter,  2  Galls.  13; 
Kelly  et  al.  v.  Smith  et  al.,  1  Blatch.  290  ; 
Michigan  State  Bank  v.  Gardner,  15  Gray 
362  ;  First,  &c.,  Bank  v.  Nelson,  38  Geo. 
391 ;  and  the  reason  is,  that  his  authority 
is  only  to  sell  :  Laussatt  v.  Lippincott  et 
al.,  8  S.  &  R.  391 ;  nor  can  he  deliver  the 
goods  of  his  principal,  to  a  creditor  in 
payment  of  his  own  debt,  even  though  he 
have  a  lien  upon  them :  Benny  et  al.  v. 
Rhodes,  18  Mo.  147;  Same  v.  Pegram,  Id. 
191  ;  but  if  the  factor  has  a  lien,  he  may 
pledge  the  goods  for  his  own  debt,  to  the 
amount  of  the  lien  :  Warner  v.  Martin,  II 
How.  209 ;  where,  however,  an  agent  has 
pledged  his  employer's  goods,  he  does  not 
thereby  lose  his  right  to  sell  them  ;  and  if 
he  does  so,  and  the  pledgee  afterwards 
disposes  of  them,  he  will  be  liable  to  the 
purchaser  :  Nowell  et  al.  v.  Pratt  et  al.,  5 
Gush.  Ill  ;  but  by  statute,  generally,  a 
factor  may  pledge  his  principal's  goods,  and 
if  the  pledgee  takes  with  notice  that  the 
pledgor  is  a  factor,  he  will  acquire  only  the 
lien  which  the  factor  had ;  if,  however, 
he  takes  without  notice,  he  will  have 
the  same  interest  as  he  would  if  the  factor 
had  been  owner.  An  agent  authorized  to 
assist  in  a  settlement,  has  no  power  to 
pledge :  Swelt  et  al.  v.  Brown,  5  Pick. 
178  ;  Wood  v.  McLain,  7  Ala.  800;  Jones 
V.  Farley,  6  Greenl.  226  ;  Hewes  v.  Dodd- 
ridge, 1  Rob.  (Va.)  143  ;  nor  is  a  power  to 
settle,  a  power  to  arbitrate :  Huber  v. 
Zimmerman,.  21  Ala.  488  ;  nor  a  power  to 
sell  land,  a  power  to  exchange  :  Reese  v. 
Medlock,  27  Texas  120;  or  to  make  parti- 
tion :  Bosel  v.  Rollins,  30  Cal.  408.  A 
power  to  draw  notes  is  not  fulfilled  by 
giving  a  bond  :  Banorgee  v.  Hovey  et  al., 
5  Mass.  11  ;  and  when  authorized  to  be 
drawn  or  endorsed   for  one  purpose,  the 


OF   TITLE, 


398 


withstanding  any  notice  of  the  fact  of  their  being  merely  factors  or  agents, 
provided  the  party  dealing  with  them  have  no  notice  that  they  are  acting 


authority  does  not  extend  to  negotiating 
them  for  any  other  object :  Hortons  et  al. 
V.  Townes,  6  Leigh  47  ;  Planters'  Bank  v. 
Cameron  et  al.,  3  Sm.  &  M.  609  ;  Suckley 
V.  Turner  et  al.,  1  Brev.  257,  s.  c,  2  Bay 
505  ;  Palmer  v.  Garrington,  1  Ohio  St. 
253  ;  so,  if  directed  to  be  drawn  payable 
on  a  certain  day,  they  cannot  be  made 
payable  at  an  earlier  time :  Batty  v. 
Carswell  et  al.,  2  Johns.  48  ;  Tate  et  al.  v. 
Evans  et  al.,  7  Mo.  419 ;  Johnson  v.  Craig, 
21  Ark.  533;  in  the  case  of  The  Bank  of 
the  United  States  v.  Bevine  et  al.,  1  Gratt. 
539,  where  nine  persons  jointly  author- 
ized J.  B.  S.  to  endorse  for  them,  jointly, 
all  notes  drawn  payable  to  J.  B.  S.,  it  was 
held  that  this  power  did  not  extend  to  the 
endorsing  of  a  note  drawn  payablii  to  one 
of  the  principals.  On  the  other  hand,  an 
agent  cannot  bind  his  principal,  by  giving 
a  note,  when  he  is  merely  authorized  to 
pay  a  sum  of  money :  Webber  v.  The 
President,  &c.,  of  Williams  College,  23 
Pick.  302  ;  Savage  v.  Rix  et  al.,  9  N.  H. 
203  ;  or  to  make  purchases :  Taber  v. 
Cannon  et  al.,  8  Mete.  456  ;  Emerson  et 
al.  V.  The  Providence  Hat  Manufacturing 
Company,  12  Mass.  237;  Dennison  v.  Ty- 
son, 17  Vt.  550  ;  or  to  manage  a  grocery: 
Smith  et  al.  y.  Gibson,  6  Blackf.  369 ;  or 
to  take  care  of  a  plantation  :  Scarborough 
V.  Reynolds,  12  Ala.  252;  nor  will  a  power 
to  receive  and  pay  debts,  or  take  notes,  or 
construct  carriages,  authorize  the  issuing 
of  a  promissory  note  :  Martin  v.  Walton 
&  Co.,  1  McCord  16;  McCuUoch  v.  McKee, 
16  Penn.  St.  289 ;  Paige  v.  Stone  et  al.,  10 
Mete.  160  ;  Hays  et  al.  v.  Lynn,  7  Watts 
524;  Temple  v.  Pomroy,  4  Gray  128.  A 
power  to  purchase,  with  money  furnished 
for  that  purpose,  is  no  power  to  buy  on 
credit :  Boston  Iron  Company  v.  Hale,  8 
N.  H.  363;  Patton  v.  Brittain,  10  Ired.  8; 
Weight  V.  Burbank,  64  Penn.  St.  247  ; 
nor  is  the  credit  system  allowable,  to  one 
who  is  empowered  to  conduct  a  business 
on  cash  principles :  Stoddard  &  Co.  v. 
Mcllvain  et  al.,  7  Rich.  525;    and  special 


authority  to  sell  does  not  authorize  a  sale 
on  credit :  Payne  v.  Potter,  9  Iowa  549  ; 
or  include  a  power  of  substitution  :  Coxe 
V.  England,  15  Penn.  St.  212  ;  or  to  receive 
confederate  notes  in  lieu  of  money : 
Thomas  v.  Thompson,  19  La.  Ann  487; 
Shiner  v.  Green,  3  Cold.  (Tenn.)  419  ;  or, 
even  to  receive  the  purchase-money  :  Law 
V.  Stokes,  3  Vroom  249.  There  are  many 
similar  cases,  deciding  that  an  agent's 
power  is  to  be 'restricted  to  the  authority 
creating  him :  Hefferuan  v.  Adams,  7 
Watts  116;  Hopkins  v.  Blanc,  1  Call  361; 
Calef  V.  Foster,  32  Maine  92 ;  Shriver  v. 
Stevens,  2  Jones  L.  258  ;  Hampton  et  al. 
V.  Matthews  et  al.,  14  Penn.  St.  105 ; 
Nash  V.  Drew,  5  Cush.  422  ;  Soule  v. 
Dougherty,  24  Vt.  92  ;  Yrquhart  v.  Mclver, 
4  Johns.  113;  Ives  v.  Davenport,  3  Hill 
273;  Woodbury  v.  Larned,  5  Min.  339; 
Cochran  v.  Richardson,  33  Vt.  169  ;  Ha- 
gerstown  Bank  v.  Loudon  Saving  Fund  So- 
ciety, 3  Grant's  Cas.  135  ;  Tate  v.  Citizens, 
&c.,  Insurance  Company,  13  Gray  79 ; 
Hazletine  v.  Miller,  44  Maine  177;  Seiple 
V.  Irwin,  30  Penn.  St.  513  ;  Brander  v.  Co- 
lumbia Insurance  Company,  2  Grant's  Cas. 
412;  and  see,  Cox  et  al.  v.  Robinson,  2 
Stew.  &  Port.  91.  Where  a  personal 
trust  or  confidence  is  reposed  in  an  agent, 
and  especially  where  the  exercise  or  appli- 
cation of  the  power,  is  made  subject  to 
his  judgment  or  discretion,  the  authority 
is  purely  personal,  and  cannot  be  dele- 
gated to  another,  unless  he  has  a  special 
power  of  substitution  :  Lyon  v.  Jerome, 
26  Wend.  485  ;  Warner  et  al.  v.  Martin, 
11  How.  209;  Blantin  et  al.  v.  Whitaker 
et  al.,  11  Humph.  313  ;  Pruitt  v.  Miller,  3 
Port.  16. 

In  the  cases  of  Gibson  v.  Colt  et  al.,  7 
Johns.  390  ;  Nixon  v.  Hyserott  et  al.,  5 
Id.  159,  and  Liscomb  v.  Kitcrell,  11  Humph. 
256,  it  was  held  that  a  power  to  sell,  did 
not  authorize  a  covenant  of  warranty; 
but  the  two  former  cases  have  been  over- 
ruled, and  the  prevailing  opinion  is,  that 
an   agent   who   is   empowered   to  sell,  is 


398 


OF   TITLE. 


•without  authority  or  mala  fide.     The  authority  of  an  agent  acting  under 
a  power  of  attorney,  determines  by  the  decease  of  the  person  giving  the 


presumed  to  possess  the  power  of  warrant- 
ing, unless  the    contrary  appear:    Nelson 
V.  Cowing   et  a!.,  6   Hill  336  ;   Woodford 
V.   McClanahan,    4    Gilm.    85;    Peters    v. 
Farnsworth,  15  Vt.  155;  Taggart  v.  Stan- 
berry,  2    McLean   543 ;  Skinner   i'.  Gunn 
et  al.,  9  Port.  305  ;  Gaines  v.  McKinley,  1 
Ala.  446;    Milburn    v.    Belloni,    34    Barb. 
607  ;     Egell    v.    Franklin,   2    Sneed    236  ; 
Cocke  V.  Campbell,  13   Id.  286  ;  in  other 
words,  a  power  to  sell,  implies  a  power  to 
warrant;  unless  there  is  some  restriction 
in  the  power  of  sale:    Schuchardt  v.  Al- 
iens, 1  Wall.  (U.  S.)  359  ;  and  this  is  cer- 
tainly the  case  where  the  sale  is  usually 
attended  with  warranty :  Smith  v.  Tracy, 
36  N.  Y.   79  ;    for   everj^   power   whether 
general    or   special,    includes   all    means 
necessary  for   carrying   it   into   effect   or 
operation,   in  accordance  with  the   legal 
maxim  cut  cunque  aliquid  concedilur  etiam 
et  id  sine  quo  res  ipsa  non  esse  potest :  Peck 
et  al.  I'.  Harriott  et  al.,    6  S.  &  R.   146  ; 
Andrews    v.     Kueeland,     6    Cowen     354; 
The    Chesapeake    Insurance    Company   v. 
Stark,  6  Cranch  268  ;  Perrotin  v.  Cuculla, 
6  La.  587  ;  N.    River    Bank   v.  Aymar,    3 
Hill  266;  The  Merchants'  Bank  of  Georgia 
V.  The  Central  Bank  of  Georgia,  1   Kellj- 
418  ;  Rouse  et  al..  Overseers,  &c.,  v.  Moore 
et  al.,  Overseers,  kc,  18  Johns.  407  ;  And- 
over  V.  Grafton,  7  N.  H.  298  ;  Sandford  v. 
Handy,  23  Wend.  260  ;  Valentine  v.  Piper, 
22  Pick.  92  ;  Vanada's  Heirs  v.  Hopkins, 
Admr.,  &c.,  1  J.  J.  Marsh.  285  ;  Wilson  v. 
Troup,  2  Cowen  197  ;  Goodale  v.  Wheeler, 
II  N.  H.   424;  Babcock  j;.   The  Western 
Railroad  Corporation,  9   Mete.    556 ;    Mc- 
Alpin   V.  Cassidy,   17    Texas  449;    hence, 
•where  an  agent  is  directed   to   purchase, 
and  no  money  is  furnished,  he  may  buy  on 
credit:  Sprague  et  al.  v.  Gillett  et  al.,  9 
Mete.  91;  Chomqua  v.  Mason  etal.,  6  Gall. 
342  ;  or  power  to  collect,  authorizes  insti- 
tution of  suit :  Joyce  v.  Duplessis,  15  La. 
Ann.  242  ;  and  it  is  presumed  that  goods 
are  to  be  sold,  when  placed  in  the  posses- 
sion of  one  whose  business  it  is  to  sell : 


Gibbs  et  al.  v.  Linsley,  13  Vt.  208  ;  so  in 
all  cases  where  no  express  direction  is 
given  in  regard  to  the  manner  of  perform- 
ing the  duty,  it  is  implied  that  it  is  to  be 
done  in  the  ordinary  way,  and  that  any 
custom  or  known  usage  shall  be  followed  : 
Van  Allen  v.  Vanderpoel,  6  Johns.  69; 
James  et  al.  v.  McCredie  et  al.,  I  Bay 
294;  State  of  Illinois  v.  Delafield,  8  Paige 
Ch.  527  ;  McClure  v.  Richardson,  Rice 
218  ;  Ives  v.  Davenport,  3  Hill  (N.  Y.)  373  ; 
May  V.  Mitchell,  5  Humph.  365;  Leland  v. 
Douglass,  1  Wend.  490;  Frost  v.  Wood,  2 
Conn.  23  ;  Bates  v.  The  Keith  Iron  Com- 
pany, 7  Mete.  225;  Owings  v.  Hall,  9 
Peters  608 ;  Fraser  &  Co.  v.  Tenants  & 
Co.,  5  Richard.  375  ;  Northern,  &c..  Rail- 
road Company  v.  Bastian,  15  Md.  494; 
Hutchings  v.  Ladd,  16  Mich.  493;  Mer- 
chants' Bank  v.  State  Bank,  10  Wall.  (U. 
S.)  604.  But  the  implied  powers  of 
agents,  will  not  extend,  beyond  the  regu- 
lar and  general  course  of  their  business 
employment:  Jones  v.  Warner,  11  Conn. 
11;  Pourie  et  al.  v.  Fraser,  2  Bay  269; 
Topham  v.  Roche,  2  Hill  (S.  C.)  307 ;  Kerns 
V.  Piper,  4  Watts  222  ;  Washington  Bank  v. 
Lewis,  22  Pick.  24  ;  Cox  v.  Hoffman,  4  Dev. 
&  Bat.  180  ;  xMorton  v.  Scull,  23  Ark.  289. 

The  principal  may  ratify  the  acts  of  an 
agent  who  has  exceeded  his  powers;  and 
if,  being  informed  of  the  disobedience  ot 
his  orders,  the  principal  makes  no  objec- 
tion, or  is  silent  respecting  it,  it  is  con- 
sidered a  recognition  of  his  agent's  acts : 
Courcier  v.  Ritter,  4  Wash.  C.  C.  549  ; 
Snow  V.  Perry,  9  Pick.  539;  Cox  et  al.  v. 
Robinson,  2  Stew.  &  Port.  91  ;  The  Mer- 
chants' Bank  of  Geo.  v.  The  Central 
Bank  of  Geo.,  1  Kelly  418 ;  Wood  v. 
McCain,  7  Ala.  800 ;  Despatch  Line  of 
Packets  v.  Bellamy  Manufacturing  Co., 
&c.,  12  N.  H.  205  ;  Weed  et  al.  v.  Carpen- 
ter, 4  Wend.  219;  Bosley  v.  Farquhar  et 
al.,  2  Blackf.  01  ;  Hotch  v.  Taylor,  10  N. 
H.  538;  Patton  v.  Britton,  10  Ired.  8; 
Burrit's  Survivors  v.  Bench  et  al.,  4 
McLean  325  ;   Very  v.  Levy,  13  How.  345  ; 


OF   TITLE. 


398 


power.(t)  But  by  a  recent  act,  no  trustee,  executor  or  administrator 
making  any  payment  or  doing  any  act  bond  fide  in  pursuance  of  any 
power  of  attorney,  in  ignorance  of  the  death  of  the  person  who  gave  the 

(t)  Bacon's  Abridgment,  tit.  Authority  (E)  ;  Lepard  v.  Vernon,  2  Ves.  &  B.  51. 
Otherwise  where  expressed  to  be  valid  notwithstanding  death.  Kiddill  v.  Farnell,  3 
Sm.  &  G.  428. 


Cowen  V.  Wheeler,  31  Maine  439  ;  Bigelow 
et  al.  V.  Denison,  33  Vt.  565 ;  Blantier  et 
al.  V.  Whitaker  et  al.,  11  Humph.  313; 
Little  V.  Stillheimer,  13  Mo.  5'72  ;  Law  v. 
Cross,  1  Black  (U.  S.)  533  ;  Klopp  v.  Wit- 
moyer,  43  Penn.  St.  226 ;  Seymour  v. 
Wyckoff,  10  N.  Y.  213  ;  Wright  v.  Boyn- 
ton,  37  N.  H.  9  ;  Workman  v.  Guthrie,  29 
Penn.  St.  495  ;  Phila.  W.  &  B.  Railroad 
Co.  V.  Cowell,  28  Id.  329  ;  Blen  v.  Com- 
pany, 20  Cal.  602  ;  Overby  v.  Overby,  18 
La.  Ann.  546  ;  and  tacit  recognition  by 
voluntary  execution  is  as  conformatory  as 
express  ratification  :  Decuir  v.  Leguire,  15 
La.  Ann.  569 ;  such  a  ratification  relates 
back  to  the  time  of  the  granting  of  the 
original  power,  and  is  equivalent  to  an 
authority  given  in  the  first  instance : 
Perry  v.  Hudson,  10  Geo.  362  ;  Irons  v. 
Reyburn,  6  Eng.  378  ;  Baleston  Spa  Bank 
V.  Marine  Bank,  16  Wis.  120;  Lowry  v. 
Harris,  12  Minn.  255  ;  but  this  adoption 
cannot  be  apportioned,  extending  only  to 
a  part  of  the  acts  of  the  agent,  and  reject- 
ing others,  but  must  embrace  the  whole 
or  nothing  :  Hoductt  v.  Tatum,  9  Ga.  70  ; 
Crawford  et  al.  v.  Barkley,  18  Ala.  270  ; 
Widner  v.  Lane,  14  Mich.  124  ;  Hender- 
son V.  Cummings,  44  His.  325  ;  Mundorf  v. 
Wickersham,  63  Penn.  St.  87. 

In  order  to  authorize  the  inference  of  a 
general  agency,  it  is  not  necessary  that  the 
person  should  have  done  an  act,  the  same 
in  species  with  that  in  question  ;  for  if  he 
have  usually  done  things  of  the  same  gen- 
eral character  and  effect,  with  the  assent 
of  his  principal,  it  is  enough  :  Com.  Bank 
V.  Norton  etal.,  1  Hill  (N.Y.)  501  ;  Arnold 
etal.v.Halenbrake  etal.,  5  Wend.  34  ;  Kelly 
t'.Lindsey,  7  Gray  287 ;  and  where  an  agency 
is  proved,  and  its  extent  is  not  shown, 
the  presumption  is,  that  it  is  a  general 
agency :  MethuneCo.  v.  Hayes,  33  Maine  169. 


The  opinion  of  Chief  Justice  Collin,  in 
the  case  of  Bearing  v.  Lightfoot,  16  Ala. 
31,  contains  an  epitome  of  the  subject  of 
this  note  ;  he  says,  "  Powers  of  attorney 
are  ordinarily  subject  to  a  strict  construc- 
tion, and  the  authority  is  never  extended 
beyond  that  which  is  given  in  terms,  or  is 
necessary   and    proper   for    carrying    the 

authority  so  given  into   full  effect 

But  in  all  cases,  whether  the  agency  be 
general  or  special,  it  is  said  to  be  a  uni- 
versal principle,  that  unless  the  inference 
is  expressly  excluded,  by  other  circum- 
stances, it  includes  all  the  usual  modes 
and  means  of  accomplishing  the  objects 
and  aims  of  the  agency The  dis- 
tinction between  a  general  and  universal 
agent  is  recognised,  and  it  was  said  that 
such  a  universal  authority  as  the  latter 
may  exercise,  will  never  be  inferred  from 
any  general  expression,  however  broad, 
but  the  law  will  restrain  them  to  the  par- 
ticular business  of  the  party,  in  respect  to 
which  it  is  presumed,  his  intention  to 
delegate  the  authority  was  principally 
directed.  .  .  .  The  difference  between  a 
general  and  a  special  agent,  is  said  to  be 
this  :  the  former  is  appointed  to  act  in 
the  affairs  of  his  principal,  generally,  and 
the  latter  to  act  concerning  some  particu- 
lar object.  In  the  former  case,  the  prin- 
cipal will  be  bound  by  the  acts  of  his 
agent,  within  the  scope  of  the  general  author- 
ity conferred  on  him^  although  those  acts 
are  violative  of  his  private  instructions 
and  directions.  In  the  latter  case,  if  the 
agent  exceeds  the  special  power  conferred 
on  him,  the  principal  is  not  bound  by  his 
acts.  .  .  Although  the  acts  of  the  agent  may 
be  inoperative  against  the  principal,  yet 
it  is  competent  for  the  latter  to  ratify 
them." 


398  OF   TITLE. 

power,  or  of  his  having  clone   some  act  to  avoid  the  power,  shall  be 
liable  for  the  money  so  paid  or  the  act  so  done.(w) 

*In  ancient  times  the  sale  of  lands  was  usually  accompanied 
[  ^^^J  \)y  a  warranty  of  their  title  ;  and  some  words,  such  as  the  word 
give  in  a  feoffment,  had  the  effect  of  an  implied  warranty,  when  none 
was  expressed.(y)^  When  warranties  fell  into  disuse,  the  purchasers  of 
lands  acquired  a  right  to  covenants  for  the  title,  varying  in  their  strin- 
gency according  to  the  nature  of  the  title  of  the  vendor.(a:)  No  war- 
ranty, however,  rises  from  the  mere  sale  of  goods,  unless  it  be  expressly 
given,  or  implied  from  the  custom  of  the  trade  or  the  nature  of  the  con- 
tract ;(?/)  but  the  sale  of  goods  in  an  open  shop  or  warehouse  has  lately 
been  held  to  be  an  implied  warranty  that  the  seller  is  the  owner  of  the 
goods. (2)  Every  affirmation  made  by  the  vendor  at  the  time  of  sale 
respecting  the  goods  is  an  express  warranty,  if  it  appear  to  have  been  so 
intended.(rt)  And  if  the  vendor  state  that  the  goods  are  his  own,  this 
amounts  to  a  warranty  of  his  title  ;(6)  but  if  the  contract  for  sale  be  in 
writing,  the  warranty  must  be  in  writing  also.(c)  And  a  warranty  made 
subsequently  to  the  sale  is  void  for  want  of  consideration. (<:?)  Contracts 
made  in  the  course  of  any  trade  are  always  subject  to  the  custom  of  that 
trade ;  and  if  by  the  custom  of  the  trade  a  warranty  is  implied  in  any 
contract,  the  vendor  *will  be  bound  by  it,  in  the  same  manner 
L  -I  as  if  he  had  given  an  express  warranty.(e)  So  the  nature  of  the 
contract  may  be  such  as  to  imply  a  warranty.  Thus  a  contract  to 
furnish  goods  for  a  particular  purpose,  contains  an  implied  warranty 
that  they  are  fit  for  that  purpose ;(/)  and  a  contract  to  furnish  manufac- 

(u)  Stat.  22  &  23  Yict.  c.  35.  s.  26. 

(y)  See  Principles  of  the  Law  of  Real  Property  344,  1st  ed. ;  346,  2d  ed.  ;  359,  3d 
ed. ;  365,  4th  ed. ;  376,  5th  ed.  ;  399,  6th  ed.  ;  407,  Tth  ed.  ;  426,  8th  ed. 

{x)  Ibid,  348,  1st  ed. ;  349,  2d  ed.  ;  362,  3d  ed. ;  368,  4th  ed.  ;  379,  5th  ed. ;  402,  6th 
ed. ;  410,  7th  ed. ;  429,  8th  ed. 

(.y)  Chanter  v.  Hopkins,  4  M.  &  W.  399  ;  Burnby  v.  Bollett,  16  M.  &  W.  644 ;  Morley 
V.  Attenborough,  3  Exch.  Rep.  500  ;  Bagueley  v.  Hawley,  Law  Rep.  2  C.  P.  625. 

(z)  Eicholtz  I'.  Bannister,  C.  P.,  11  Jur.  X.  S.  15  ;  17  C.  B.  N.  S.  708  (E.  C.  L.  R. 
vol.  112). 

(a)  See  Richardson  v.  Brown,  1  Bing.  344  (E.  C.  L.  R.  vol  8)  ;  Sheppard  v.  Kain,  5 
B.  &  Aid.  240  (E.  C.  L.  R.  vol.  7) ;  Power  v.  Barham,  4  Ad.  &  E.  473  (E.  C.  L.  R.  vol. 
31);  Carter  v.  Crick,  4  H.  &  N.  412. 

(b)  Furniss  v.  Leicester,  Cro.  Jac.  474  ;  Medina  ;'.  Stoughton,  1  Salk.  210. 

(c)  Pickering  v.  Dowson,  4  Taunt.  779.         (d)   Finch,  L.  189.     See  ante,  p.  73. 
(e)  Jones  v.  Bowden,  4  Taunt.  847. 

(/)  Jones  V.  Bright,  5  Bing.  533  (E.  C.  L.  R.  vol.  15)  ;  Brown  v.  Edgington,  2  Man. 
&  Gr.  279  (E.  C.  L.  R.  vol.  40). 

1  See  "Rawle  on  Covenants  for  Title,"  p.  4G7,  et  seq. 


OF   TITLE. 


400 


tured  goods  implies  a  -warranty  that  they  shall  be  of  a  merchantable 
quality.  (^)^    And  an  important  addition  to  the  law  of  warranty  has  been 

{g)  Laing  v.  Fidgeon,  6  Taunt.  108  (E.  C.  L.  R.  vol.  1). 


^  No  particular  form  of  words  is  required 
to  constitute  a  warranty  of  personal  pro- 
perty, nor  is  tiie  word  "warrant"  neces- 
sary :  Bacon  v.  Brown,  3  Bibb  35  ;  Chap- 
man V.  Murch,  19  Johns.  290  ;  Roberts  v. 
Morgan,  2  Cowen  438  ;  The  Oneida  Manu- 
facturing Soc.  V.  Lawrence  et  al.,  4  Id.  440  ; 
Osgood  et  al.  v.  Lewis,  2  Har.  &  G.  429  ; 
Whitney  «.  Sutton,  11  Wend.  411  ;  Ricks, 
Admr.  v.  Dillahunty,  8  Port.  134;  Towell 
et  al.  V.  Gatewood,  2  Scam.  22  ;  Beeman 
V.  Black,  3  Vt.  53  ;  Banfield  v.  Brutton,  7 
B.  Mon.  108;  Corley  v.  Wilkins,  6  Barb. 
557  ;  Hawkins  tJ.  Berry,  5  Gilm.  36;  Rogers 
V.  Ackerman,  22  Barb.  134 ;  and,  even 
where  the  word  "  warrant"  has  been  used," 
there  is  still  room  to  doubt  whether  a  tech- 
nical warranty  was  intended :  Starnes  et  al. 
V.  Erwin,  10  Ired.  226  ;  Isley  v.  Stewart,  4 
Dev.  &  Bat.  160.  But  a  mere  representa- 
tion, affirmation,  or  description,  does  not 
amount  to  a  warranty,  even  though  the 
property  should  turn  out  to  be  entirely  dif- 
ferent from  the  article  described,  or  spuri- 
ous :  Barrett  t-.  Halls,  1  Aik.  269  ;  Dyer  v. 
Lewis,  7  Mass.  284 ;  Jackson  v.  Wetherill, 
7  S.  &  R.  480;  Hyatt  v.  Boyle,  5  Gill  & 
Johns.  ,110;  Hogins  v.  Plympton,'ll  Pick. 
97  ;  Steward  v.  Doughterty,  3  Dana  479 ; 
Welsh  V.  Carter,  1  Wend.  185  ;  Whitman 
V.  Freese  et  al.,  23  Maine  212  ;  Wason  v. 
Rowe,  10  Vt.  525  ;  McFarland  v.  Newman, 
9  Watts  55  ;  Banfield  v.  Brutton,  7  B.  Mon. 
108;  Lamb  v.  Crafts,  12  Mete.  355;  The 
Richmond  Trading  and  Manufacturing  Co. 
V.  Farquhar,  8  Blackf.  89  ;  Humphreys  v. 
'  Comline,  Id.  508  ;  Hawes  et  al.  v.  Lawrence 
etal.,4  Comst.  345  ;  Mackay  f.Rhinelander 
et  al.,  1  Johns.  Cas.  408  ;  Wetherill  v.  Neil- 
son,  20  Penn.  St.  448;  Weimer  w.  Clement, 
37  Id.  149  ;  Rockafellow  v.  Baker,  41  Id. 
319 ;  Hotchkiss  v.  Gage,  26  Barb.  141  ; 
O'Neal  V.  Bacon,  1  Houst.  215;  Wheeler  y. 
Read,  36  111.  81  ;  and  the  purchaser  can- 
not claim  indemnity,  if  the  goods  differ  in 
quality   or  kind  from  those    represented, 


unless  there  has  been  an  express  warranty, 
or  fraud,  or  such  circumstances  as  will 
amount  in  law,  to  an  implied  warranty : 
Snell  et  al.  v.  Moses  et  al.,  1  Johns.  86  ; 
Perry  v.  Aaron,  Id.  129 ;  Seixas  et  al.  v. 
Woods,  2  Caiues  48  ;  Holden  v.  Dakin,  4 
Johns.  421  ;  Davis  v.  Meeker,  5  Id.  354  ; 
Sands  et  al.  v.  Taylor  et  al..  Id.  404;  Cun- 
ningham V.  Spier,  13  Id.  392  ;  Kimmel  v. 
Lichty,  3  Yeates  262  ;    Allen  v.  Cockerill ; 

4  Bibb  264  ;  Wilson  v.  Shackleford,  4  Rand 

5  ;  Neilson  et  al.  v.  Dickerson,  1  Desauss. 
133 ;  Kingsbury  v.  Taylor,  29  Maine  508  ; 
Carley  v.  Wilkins,  6  Barb.  557  ;  Weimer  v. 
Clement,  37  Penn.  St.  147 ;  Eagan  v.  Call,  34 
Id.  236;  nor  can  he  complain,  for  "if  he 
is  unwilling  to  trust  his  own  judgment,  he 
may  insist  upon  a  warranty  of  the  quality;" 
and  this  will  be  binding,  even  where  the 
goods  have  been  examined  by  the  buyer  : 
Willings  et  al.  v.  Consequa,  Peters  C.  C. 
317;  s.  c.  Id.  172;  Pinney  «;.  Andrus,  41 
Vt.  631  ;  where,  however,  a  representation 
or  description,  is  understood  by  the  parties 
as  an  absolute  assertion,  as  contradistin- 
guished from  a  mere  expression  of  opinion, 
it  is  a  warranty :  The  Oneida  Manufactur- 
ing Co.  V.  Lawrence  et  al.,  4  Cowen  440  ; 
Osgood  et  al.  v.  Lewis,  2  Har.  &  G.  495  ; 
Kinley  t^.  Fitzpatrick,  4  How.  (Miss).  59; 
Morrill  v.  Wallace  et  al.,  9  N.  H.  HI; 
Baum  V.  Stevens,  2  Ired.  411 ;  Erwin  v. 
Maxwell,  3  Murph.  241  ;  Ayres  v.  Parks, 
Admr.,  3  Hawkes  89  ;  Gilchrist  v.  Marrow, 
2  Carol.  L.  Repos.  608 ;  Foggart  v.  Black- 
welier  et  al.,  4  Ired.  238  ;  House  v.  Firt,  4 
Blackf.  293  ;  Winsor  et  al.  v.  Lombard,  18 
Pick.  57  ;  McFarland  i'.  Newman,  9  Watts 
55;  Foster  v.  Caldwell,  18  Vt.  176;  Bee- 
man  V.  Buck,  3  Id.  53  ;    Carley  v.  Wilkins, 

6  Barb.  557  ;  Tyre  v.  Causay,  4  Harring. 
425 ;  Hawkins  v.  Berry,  5  Gilm.  36  ;  Hil- 
man  w.  Wilcox,  30  Maine,  170;  Ender  v. 
Scott,  6  III.  35  ;  Taymon  v.  Mitchell  et  al., 
1  Md.  Ch.  Decs.  496;  Beals  t>.  Olmstead,  24 
Vt.  114;  Lamme  v.  Gregg,  1  Mete.  (Ky). 


400 


OF   TITLE. 


made  by  the  Merchandise  Marks  Act,  1862,  to  the  provisions  of  which 
we  have  before  referred. (A) 

(h)  Stat.  25  &  26  Vict.  c.  88,  ante,  p.  257. 


444;  Warren  v.  Van  Pelt,  4  E.  D.  Smith 
202  ;  Randall  v.  Thornton,  43  Maine  226  ; 
Hahn  v.  Doolittle;  18  Wis.  196;  Jones  v. 
Quick,  28  Ired.  125.  In  the  case  of  Towell 
et  al.  V.  Gatewood,  2  Scam.  22,  this  dis- 
tinction was  lucidl}'  drawn  by  Chief  Jus- 
tice Wilson,  who  saj-s  :  "  Where  the  repre- 
sentation is  positive,  and  relates  to  a  mat- 
ter of  fact,  it  constitutes  a  warranty,  as 
that  a  ship  is  an  American  or  French  ship, 
or  that  a  crew  consists  of  so  many  hands. 
But  where  the  representation  relates  to 
that  which  is  a  matter  of  opinion,  or  fancy, 
as,  for  example,  the  value  of  a  horse  or 
painting,  in  such  case,  the  representation  is 
to  be  regarded  as  an  expression  of  opinion, 
rather  than  such  a  verification  of  a  fact, 
as  will  amount  to  a  warranty,  unless  that 
idea  is  excluded  by  an  express  warranty, 
or  such  other  declaration,  as  leaves  no 
doubt  of  the  intention  to  make  a  war- 
ranty." So,  also,  if  the  affirmation  be  ac- 
companied with  a  declaration,  that  the 
owner  would  not  be  afraid  to  warrant,  it 
amounts  to  such  :  Cooky.  Mosely,  13  Wend. 
277.  Whenever  it  is  doubtful  whether  a 
warranty  was  intended  by  the  parties  to  a 
contract,  the  question  is  one  lying  within 
the  province  of  a  jury  to  determine  :  Duf- 
fee  I'.  Mason,  8  Cowen  25  ;  Osgood  et  al., 
V.  Lewis,  2  Har.  &  G.  495  ;  Whitney  v. 
Sutton,  11  Wend.  411  ;  Kinley  v.  Fitzpat- 
rick,  4  How.  (Miss.)  59;  Baum  v.  Stevens, 
2  Ired.  411  ;  Foggart  v.  Blackweller,  4  Id. 
238;  House  v.  Firt,  4  Blackf.  293;  McFar- 
land  V.  Newman,  9  Watts  55;  Foster  v. 
Caldwell,  18  Vt.  176  ;  Bigler  v.  Flickenger, 
55  Penn.  St.  279;  Terhune  v.  Dever,  36 
Ga.  648;  Bradford,  &c.,  v.  Bush,  10  Ala. 
386  ;  but  where  the  contract  is  in  writing, 
it  must  be  interpreted  by  the  court :  Os- 
good et  al.  V.  Lewis,  2  Har.  &  G.  495. 

Where  a  person  has  purchased  an  arti- 
cle with  the  ability  or  opportunity  of  an 
inspection,  he  will  be  considered  as  hav- 
ing purchased  on  his  own  judgment,  and 


will  not  be  entitled  to  look  to  the  seller, 
should  he  be  disappointed  in  the  value  or 
quality  of  the  article  :  Rose  et  al.  v.  Beatie, 
2  N.  «fe  McC.  538  ;  McFarland  v.  Newman, 
9  Watts  55  ;  Salisbury  et  al.  v.  Stainer  et 
al.,  19  Wend.  159;  Barnett  v.  S'tanton,  2 
Ala.  195  ;  Baird  v.  Matthews,  6  Dana  129  ; 
Dillard  v.  Moore,  2  Eng.  166  ;  Simpson  v. 
Wiggin  et  al.,  3  Wood.  &  M.  413  ;  Tay- 
mon  V.  Mitchell  et  al.,  1  Md.  Ch.  Decs.  496  ; 
Calhoun  v.  Vechis,  3  Wash.  C.  C.  165; 
Curcier  et  al.  v.  Pennock,  14  S.  &  R.  51  ; 
Carson  v.  Baillie,  19  Penn.  St.  375  ;  Hill  v. 
North,  34  Vt.  604;  Hadley  v.  Cleiton  & 
Co.,  13  Ohio  St.  502;  McGuire  v.  Kearney, 
17  La.  Ann.  295  ;  and  this  is  upon  the  prin- 
ciple, "  that  the  vendee  has  it  in  his  power 
to  guard  against  any  latent  defect  or  de- 
ception in  the  article  purchased,  by  exact- 
ing a  warranty  from  the  vendor ;  but  if, 
instead  of  taking  this  precaution,  he  will 
trust  to  his  own  sagacity  and  judgment,  he 
should  bear  the  loss,  if  they  deceive  him:" 
Welsh  V.  Carter,  1  Wend.  185;  but  if  the 
seller  has  acted  fraudulently,  he  will,  not- 
withstanding, be  liable  :  Henshaw  et  al.  v. 
Robbins,  9  Mete.  83  ;  Hanks  v.  McKee,  2 
Litt.  227.  In  accordance  with  the  above 
doctrine,  where  an  article  was  sold  at  auc- 
tion as  barilla,  and  was  examined  by  the 
purchaser,  and  a  sample  exhibited  at  the 
sale,  and  the  article  turned  out  to  be  kelp, 
it  was  held,  that  there  was  no  warranty : 
Swett  V.  Colgate  et  al.,  20  Johns.  196  ;  and 
generally  speaking,  in  executed  contracts, 
for  the  sale  of  personal  property,  where 
there  is  neither  fraud  nor  express  warranty, 
the  purchaser  takes  the  property  at  his 
own  risk,  as  to  the  quality  and  condition : 
Moses  et  al.  v.  Mead  et  al.,  1  Denio  378  ;  s. 
c.  5  Id.  617  ;  Ricks,  Admr.,  v.  Dillahunty, 
8  Port.  134  ;  Lindsay  v.  Davis,  30  Misso. 
406 ;  Deming  v.  Foster,  42  N.  H.  165. 
Some  of  the  states  hold,  that  a  sound 
price  implies  a  sound  commodity;  this  is 
the  law  of  North  and    South    Carolina : 


OF   TITLE. 


400 


If  goods  and  chattels  should  have  come  into  the  possession  of  persons 
having  no  title  to  them,  such  persons  will,  in  course  of  time,  be  quieted 


Crawford  v.  Wilson,  2  Constitutional  R. 
352;  Whitefield  v.  McLeod,  2  Bay  380; 
State  V.  Gaillard  et  al.,  Id.  19 ;  Lester  v. 
Exrs.  of  Graham,  1  Constitutional  R.  182  ; 
Timrod  v.  Shoolbred,  1  Bay  324  ;  Barnard 
V.  Yates,  1  N.  &  McC.  142  ;  Missroon  et  al. 
V.  Waldo  et  al.,  2  Id.  76 ;  Rose  et  al.  v. 
Beatie,  2  N.  &  McC.  538  ;  Ashley  v.  Reeves, 
2  McC.  432;  Toris  v.  Long,  1  Tayl.  17; 
Vaughan  v.  Campbell,  2  Brev,  53  ;  Furman 
V,  Miller,  Id.  127;  but  most  of  the  states 
entirely  repudiate  this  doctrine  :  Sexas  et 
al.  V.  Woods,  2  Caines  48 ;  Fleming  v. 
Slocum,  18  Johns.  403  ;  Johnston  v.  Cope 
et  al.,  3  Har.  &  Johns.  89 ;  Penniman  v. 
Pierson,  Chip.  (Vt.)  394  ;  Dean  v.  Mason, 
4  Conn.  428  ;  Cozzins  v.  Whitaker,  3  Stew. 
&  Port.  322  ;  Hart  et  al.  v.  Wright,  17 
Wend.  267  ;  s.  c.  18  Id.  449  ;  West  v.  Cun- 
ningham, 9  Port.  104 ;  Mixer  et  al.  v.  Co- 
burn,  11  Mete.  559;  Hoe  v.  Sanborn,  21  N. 
Y.  552  ;  Weimer  v.  Clement,  37  Penn.  St. 
147  ;  Mason  v.  Chappell,  15  Gratt.  572  ; 
Hawkins  v.  King,  30  Geo.  909 ;  and  in 
those  states,  where  this  principle  is  ac- 
knowledged, it  is  held,  that  there  will  not 
be  an  implied  warranty  of  soundness,  in  a 
case  free  from  fraud,  where  the  purchaser 
is  acquainted  with  the  defect  in  the  article 
sold  :  Britain  v.  Israel  et  al.,  3  Hawks  222  ; 
Miller  v.  Yarborough,  1  Rich.  48  ;  Porcher, 
ads.  Caldwell,  2  McM.  329  ;  Exrs.  of  Hart  v. 
Edwards,  2  Bail.  306 ;  Williams  v.  Vance, 
Admr.,  Dudley  L.  &  Eq.  97  ;  Lyles  v.  Bass, 
Cheeves  L.  &  Eq.  85  ;  Venning  v.  Gault,  Id. 
87  ;  Watson  et  al.,  Admr.,  v.  Boatwright, 
1  Rich.  402  ;  Wood,  Admr.,  v.  Ashe,  1 
Strobh.  407 ;  Hudgins  v.  Perry,  7  Ired. 
102  ;  for  a  general  warranty  of  soundness 
does  not  cover  defects  which  are  known  to 
the  vendee  :  Williams  v.  Ingram,  21"  Texas 
300 ;  of  course,  there  can  be  no  implied 
warranty,  from  a  sound  price,  where  the 
vendor  positively  refuses  to  warrant :  Farr 
V.  Gist,  1  Rich.  68  ;  McLean  v.  Green,  2 
McM.  17  ;  Limehouse  v.  Gray,  3  Brev.  321. 
In  cases  of  sales  by  sample,  most  of  the 
decisions  maintain  that  the  vendor  is  re- 
32 


sponsible,  if  the  quality  of  the  bulk  of  the 
commodity  is  not  equal  to  the  sample 
shown  :  The  Oneida  Manufacturing  Co.  v. 
Laurence  et  al.,  4  Cowen  440  ;  Rose  et  al. 
V.  Beatie,  2  N.  &  McC.  538  ;  Gallagher  et 
al.  V.  Waring,  9  Wend.  20 ;  Moses  et  al.  v. 
Mead  et  al.,  1  Denio  378 ;  s.  c,  6  Id.  617  ; 
Magee  v.  Billingsley,  3  Ala.  679 ;  Brantley 
V.  Thomas,  22  Texas  270  ;  Hall  v.  Plassau, 
19  La.  Ann.  11 ;  and  this  principle  has  been 
held  to  apply,  even  though  the  purchaser 
himself  takes  a  sample  from  the  goods : 
Beebe  v.  Robert,  12  Wend.  413  ;  Boorman 
V.  Jenkins,  Id.  566 ;  Williams  v.  Spafford, 
8  Pick.  250 ;  and  so  where  the  sample  was 
made  by  a  warehouseman  :  Whittaker  v. 
Hueske,  29  Texas  355 ;  but  in  Pennsylvania, 
where  there  is  a  sale  by  sample,  there  is 
no  implied  warranty  that  the  quality  of 
the  goods  shall  be  the  same  as  the  sample, 
but  merely  that  they  shall  be  the  same  in 
species  :  Borrekins  v.  Bevan  et  al.,  3  Rawle 
23  ;  Jennings  et  al.  v.  Gratz,  Id.  168  :  Wil- 
lings  et  al.  v.  Consequa,  Pet.  C.  C.  317  ;  s. 
c,  Id.  172;  Carson  et  al.  v.  Baillie,  19 
Penn.  St.  375 ;  Lord  v.  Grow,  39  Id.  91 ; 
Fraley  v.  Bispham,  10  Id.  320  ;  in  the  last 
of  which  decisions,  Judge  Coulter  says  : 
"  If  that  case "  (Borrekins  v.  Bevan) 
"means  anything,  it  means  this,  that 
when  the  thing  is  sold  by  sample,  and 
without  express  warranty,  the  purchaser 
takes  it  at  his  own  risk,  unless  it  should 
prove  to  be  an  article  different  in  kind  ; 
all  gradations  in  quality  are  at  the  hazard 
of  the  buyer ;"  and  in  Maryland,  it  has 
been  held,  that  in  order  that  a  sale  by 
sample,  should  amount  to  a  warranty  that 
the  bulk  of  the  article  is  of  the  same 
quality  as  the  sample,  it  is  necessary  that 
the  sample  should  have  been  so  used  in 
contracting,  as  would  amount  to  an  ex- 
press averment  on  the  part  of  the  seller  of 
the  condition  and  quality  of  the  goods 
sold  :  Gunther  v.  Atwell,  19  Md.  157  ;  some 
of  the  cases,  however,  seem  to  hold  an  in- 
termediate doctrine,  deciding  that  there  is 
an  implied  warranty,  that  a  sample  taken 


400 


OF   TITLE. 


in  their  enjoyment  by  virtue  of  the  Statute  of  Limitations.(/)     By  this 
statute  all  actions  of  trespass,  detinue  and  replevin  for  goods  or  cattle 


(i)  Stat.  21  Jac.  I.  c.  16. 


in  the  usual  way,  is  a  fair  specimen  of  the 
thing  sold  :  Sands  et  al.  v.  Taylor  et  al.,  5 
Johns.  404;  Hargons  v.  Stone,  1  Seld.  ^3  ; 
Bevine  et  al.  v.  Dord,  2  Sandf.  95  ;  and  in 
Bradford  v.  Manly,  13  Mass.  139,  it  vras 
held,  that  a  sale  by  sample,  is  tantamount 
to  a  warranty  that  the  article  sold  is  of 
the  same  kind  Avith  the  sample ;  but  if  an 
opportunity  bad  been  given  for  examina- 
tion or  inspection,  it  is  a  strong  circum- 
stance to  prove  that  the  sale  has  not  been 
by  sample :  Bevine  et  al.  v.  Dord,  2  Sandf. 
89  ;  and  where  the  sample  as  well  as  the 
bulk  of  the  article  contained  a  latent  de- 
fect, it  was  held,  that  there  was  no  im- 
plied warranty  against  such  defect :  Dick- 
inson t'.  Gay,  7  Allen  29. 

In  the  sale  of  provisions  for  domestic 
use,  there  is  an  implied  warranty  of  fresh- 
ness: Van  Bracklin  v.  Fonda,   12   Johns. 
468 ;  Moses  et  al.  v.  Mead  et  al.,  1  Denio 
378;    s.   c,   5   Id.   617;   but  the   circum- 
stances of  the  sale  may  be  such  that  there 
will  be  no  implied  warranty,  as  where  the 
vendor,    equally  with  the   vendee,   relies 
upon  the  brand  of  the  inspector,  or  the 
goods  are  not  sold  for  consumption  :  Em- 
erson V.  Brigham,  10  Mass.  197;  Jones  v. 
Murray,  &c.,  3  Mon.    83;  Moses  et  al.  v. 
Mead  et  al.,  1  Denio  378  ;    s.  c.  5  Id.  617  ; 
Hyland  v.   Sherman,  2  E.  D.  Smith  234 ; 
and  generally,  wherever  articles  are  sold 
for  a  particular  use  or  purpose,  there  is  an 
implied  warranty  that  they  are  fit  for  that 
purpose  :  Brenton  v.  Davis,  8  Blackf.  89  ; 
Otts  V.  Alderson,  10   Smed.  &  Mar.  480 ; 
Singleton's  Admr.  v.  Kennedy,  9  B.  Mon. 
222;  Beals  v.  Olmstead,  24  Vt.  114;  Cun- 
ningham V.  Hall,  Sprague  404  ;  Rodgers  v. 
Niles,  11    Ohio  St.   48;    Overton  v.  Phe- 
lan,  2  Head  445  ;  Brown  v.  Murphee,  31 
Miss.  91 ;  Fish  v.  Tank,  12  Wis.  276  ;  Pease 
V.   Sabin,   38  Vt.   432 ;    Divine  v.  McCor- 
mick,  50  Barb.  116  ;  Street  v.  Chapman, 
29  Ind.   142  ;  Hoover  v.  Peters,  18  Mich. 
51  ;  but  where  there   is  no  fraud  in  the 


seller,  neitlier  suppressio  vert,  nor  suggestio 
falsi,  and  the  purchaser  is  in  possession  of 
all  the  information  necessary  to  enable 
hira  to  make  a  correct  estimate  of  the 
value  of  the  thing  he  is  about  to  purchase, 
or  which,  from  its  nature,  would  occur  to 
an  ordinary  observer,  the  law  will  not 
raise  an  implied  warranty  on  the  part  of 
the  seller,  that  it  shall  answer  the  pur- 
pose for  which  the  purchaser  bought  it : 
Carnochan  v.  Gould,  1  Bail.  179. 

Where  a  purchase  is  made  without  an 
examination,  or  an  opportunity  for  it,  it 
seems  that  there  is  an  implied  warranty 
the  thing  sold  shall  be  merchantable : 
Gallagher  et  al.  v.  Waring,  9  Wend.  20 ;  s. 
c.  18  Id.  425  ;  Howard  et  al.  v.  Hoey,  23 
Id.  350;  Fish  v.  Roseberry,  22  111.  288; 
Lanata  v.  O'Brien,  13  La.  Ann.  229 ; 
Ketchum  v.  Wells,  19  Wis.  25 ;  and  there 
may  be  an  implied  warranty  by  custom  ; 
but  it  must  be  either  a  general  usage,  or 
both  plaintiff  and  defendant  must  be  ac- 
quainted with  the  custom,  in  order  to 
raise  the  warranty:  Stevens  v.  Smith,  21 
Vt.  90.  Where  it  is  customary  to  examine 
an  article  before  shipping  it  away,  it  has 
been  held,  that  the  purchaser  who  neglects 
to  do  so,  admits  the  quality  to  be  good : 
Vanderhorst  &  Co.  v.  McTaggart,  2  Bay 
498.  And  see  Thompson  v.  Ashton,  14 
Johns.  316. 

In  every  sale  of  a  note,  or  other  negotia- 
ble instrument,  there  is  an  implied  war- 
ranty of  genuineness :  Turner  v.  Tuttle,  1 
Root  350;  Jonson  v.  Titus  et  al.,  2  Hill 
606;  Herrick  v.  Whitney  et  al.,  15  Johns. 
240  ;  Coolidge  v.  Brigham,  1  Mete.  547  ; 
s.  c.  5  Id.  68 ;  Thrall  v.  Newall,  19  Vt. 
203 ;  Aldrick  v.  Jackson,  5  R.  I.  218  ; 
Thompson  v.  McCuUough,  31  Mo.  224 ; 
Flynn  v.  Allen,  57  Penn.  St.  482  ;  McCay 
V.  Barber,  37  Ga.  423;  but  in  the  sale  and 
assignment  of  a  judgment,  without  re- 
course, it  is  not  warranted  that  the  pro- 
ceedings  are   free   from   error :    Glass   v. 


OF   TITLE. 


400 


must  be  brought  within  six  years  next  after  the  cause  of  such  action ;(/) 
but  if  the  person  entitled  to  any  such  action  be  under  age,  feme  covert, 

(J)  Sect.  3. 


Reed,  2  Dana  168.  In  the  sale  of  every 
personal  chattel,  there  is  an  implied  war- 
ranty of  title :  Defreeze  v.  Trumper,  1 
Johns.  274;  Rew  r.  Barber,  3  Cowen  272  ; 
Hermance  v.  Vernoy,  6  Johns.  5  ;  Gookin 
et  al.  V.  Graham  et  al.,  5  Humph.  480; 
Ricks,  Admr.,  v.  Dillahunty,  8  Port.  134 ; 
Boydv.  Bopst,  1  Dall.  91  ;  Chism  v.  Woods, 
Hard.  231  ;  Forsythe,  &c.,  v.  Ellis,  4  J.  J. 
Marsh.  298 ;  Lanier  v.  Auld,  Admr.,  1 
Murp.  138 ;  Moore  et  al.  v.  Laugham,  3 
Hill  (S.  C.)  299  ;  Chancellor  v.  Wiggins,  4 
B.  Mon.  201;  Trigg  v.  Faris,  5  Humph. 
343  ;  Charlton  v.  Lay,  Id.  496 ;  McCoy  et 
al.  V.  Artcher,  3  Barb.  323 ;  Dorsey  v. 
Jackman,  1  S.  &  R.  42  ;  Lines  v.  Smith,  4 
Fla.  47  ;  Beninger  v.  Corwin,  4  Zabr.  257  ; 
Robinson  v.  Rice,  20  Mo.  229 ;  Sherman  v. 
Champlain  Trans.  Co.,  31  Vt.  162  ;  Wil- 
liamson V.  Sammons,  34  Ala.  691 ;  and  it 
extends  to  freedom  from  prior  liens  or  in- 
cumbrances:  Dresser  v.  Ainsworth,  9 
Barb.  619;  Davis  v.  Smith,  7  Minn.  414; 
Miller  v.  Van  Tessel,  24  Cal.  458  ;  but  where 
the  sale  of  personal  property  is  by  a  sheriff, 
constable,  or  other  judicial  officer,  or  by 
an  executor,  administrator,  or  other 
trustee  ;  or  if  the  article  sold  is  not,  at  the 
time  of  sale,  in  the  possession  of  the  o^yner, 
but  in  that  of  some  third  person,  there  is 
no  implied  warranty  of  title  :  Morgan  v. 
Fencher,  1  Blackf.  10  ;  The  Monte  Allegre, 

9  Wheat.  616  ;  Davis  v.  Murray,  2  Consti- 
tutional R.  143 ;  Robinson  v.  Cooper,  1 
Hill  (S.  C.)  286;  Fuller  v.  Fowler,  1  Bail. 
75 ;  Ricks,  Admr.,  v.  Dillahunty,  8  Port. 
134;  Forsythe,  &c..  v.  Ellis,  4  J.  J.  Marsh. 
298  ;  Hensley  v.  Baker,  10  Mo.  157  ;  McCoy 
et  al.  V.  Artcher,  3  Barb.  323  ;  Edick  v.  Crim, 

10  Barb.  445  ;  Worthy  et  al.  v.  Johnson  et 
al.,  8  Geo.  236  ;  Scott  v.  Hix,  2  Sneed  192  ; 
Long  V.  Hickingbottom,  28  Miss.  772  ; 
where,  however,  a  judicial  officer  "steps 
out  of  his  oSicial  duty,  and  does  what  the 
law  has  given  him  no  authority  to  do,  he 
may  make  himself  personally  responsible  :" 
The  Monte  Allegre,  9  Wheat.  616. 


The  law  of  implied  warranties  extends 
as  well  to  cases  of  exchange,  as  to  those 
of  purchase :  Rivers  v.  Crugett,  1  MoCord 
100. 

Where  an  express  warranty  has  been 
given,  it  does  not  matter  whether  the  seller 
knew  any  unsoundness  in  the  chattel  sold 
or  not,  for  in  either  case  he  will  be  respon- 
sible :  Kimmel  v.  Lichty,  3  Yeates  262 ; 
Smith  t'.  Williams,  1  Car.  L.  Repos.  263,  n. ; 
Ricks,  Admr.,  v.  Dillahunty,  8  Port.  134 ; 
Beeman  v.  Buck,  3  Vt.  53  ;  Carley  v.  Wil- 
kins,  6  Barb.  557;  Tyre  v.  Causay,  4  Bar- 
ring. 425  ;  Bartholomew  v.  Bushnell,  20 
Conn.  271  ;  Trice  v.  Cochran,  8  Graft.  442  ; 
such  a  warranty,  however,  does  not  extend 
to  anything  not  included  within  its  terms  : 
Porcher,  ads,  Caldwell,  2  McMull.  329; 
Stucky  V.  Clyburn,  Cheeves  L.  &  Eq.  R. 
186  ;  Rodrigues,  ads,  Habersham,  1  Spear 
314  ;  McLaughlin  v.  Horton,  1  Hill  (S.  C.) 
383  ;  Wood,  Admr.,  v.  Ashe,  1  Strobh. 
407  ;  thus,  a  warranty  of  quality  is  no 
warranty  of  value  :  Lightburn  v.  Cooper, 
1  Dana  274-;  nor  will  one  of  title  extend 
to  soundness  :  Smith,  &c.,  v.  Miller,  2  Bibb 
617  ;  Wells  v.  Spears,  1  McCord  421 ; 
Hughes,  ads,  Banks,  Id.  537 ;  nor  will 
quantity  cover  quality :  Jones  v.  Murray, 
&c.,  3  Mon.  83  ;  Taymon  v.  Mitchell  et  al., 
1  Md.  Ch.  Decs.  496 ;  but  in  those  places 
where  a  sound  price  implies  a  sound 
article,  an  express  warranty  of  title  will 
not  exclude  an  implied  warranty  of 
soundness :  Roderigues,  ads,  Habersham, 
1  Spear  314;  Wells  v.  Spears,  1  McCord 
421  ;  Wood  v.  Ashe,  3  Strobh.  64.  Even 
an  express  warranty,  will  not  extend  to 
open  and  palpable  defects :  Schuyler  v. 
Russ,  2  Caines  202  ;  Long  v.  Hicks,  2 
Humph.  305;  Caldwell  v.  Smith,  4  Dev.  & 
Bat.  64;  Stucky  v.  Clyburn,  Cheeves  L. 
&  Eq.  R.  186;  Mulvany  v.  Rosenberger,  18 
Penn.  St.  203 ;  Fisher  v.  Pollard,  2  Head 
314;  hence  a  wilful  and  fraudulent  repre- 
sentation by  the  seller  of  a  fire  engine 
that  it  was  as  good  as  another  designated 


400 


OF   TITLE. 


or  non  compos  mentis,  such  person  shall  be  at  liberty  to  bring  the  same 
action  within  six  years  after  the  disability  is  removed. (^)  The  disabili- 
ties of  absence  beyond  seas  and  imprisonment  have  been  abolished  by  a 
recent  statute.(?)^ 


{k)  Sect.  7. 


(Z)  Stat.  19  &  20  Vict.  c.  97,  ss.  10,  12. 


engine,  and  a  warranty  that  it  would  per- 
form as  well  as  any  other  in  the  western 
country,  is  not  to  be  considered  violated, 
because  the  warranted  engine  is  inferior 
to  others  in  the  country,  much  larger  and 
more  costly,  if  the  inferiority  be  evident 
to  a  common  observer :  The  President,  &c., 
V.  Wadleigh,  7  Black.  102  ;  but  see  Wilson 
V.  Ferguson,  Cheeves  L.  &  Eq.  R.  190. 

In  the  case  of  Otts  v.  Alderson,  10  Sm.  & 
M.  480,  Judge  Clayton,  in  speaking  of 
warranties,  uses  the  following  language  : 
"  On  this  subject  the  general  rule  is,  that 
the  purchaser  buys  at  his  own  peril,  caveat 
emptor,  unless  the  seller  either  gives  an 
express  warranty,  or  unless  the  law  imply 
a  warranty  from  the  circumstances  of  the 
case,  or  the  nature  of  the  thing  sold  ;  or 
unless  the  seller  be  guilty  of  fraudulent 
representation  or  concealment,  in  respect 
to  a  material  inducement  to  the  sale.  No 
particular  form  of  words  is  necessary,  to 
the  creation  of  a  warranty — any  affirma- 
tion or  representation,  in  relation  to  the 
article  sold,  is  sufficient,  if  it  be  intended 
to  have  that  effect.  There  is  certainly  a 
tendency  in  modern  cases  ...  to 
extend  the  doctrine  of  implied  warranty 

.  .  1st.  A  warrant  is  implied,  that  the 
seller  has  title.  2d.  That  the  articles  are 
merchantable,  when,  from  their  nature  or 
situation  at  the  time  of  the  sale,  an  exam- 
ination is  impracticable.  This  rule  is 
most  frequently  brought  into  requisition 
where  the  seller  is  a  manufacturer.  3d. 
Upon  an  executory  contract  to  manufac- 
ture an  article,  or  to  furnish  it  for  a  par- 
ticular use  or  purpose,  a  warranty  will  be 
implied,  that  it  is  reasonably  fit  and  proper 
for  such  purpose  and  use,  as  far  as  any 
article  of  such  kind  can  be.  4th.  A  war- 
ranty is  implied,  against  all  latent  defects, 
in  two  cases;  first,  where  the  seller  knew 
the  buyer  did  not  rely  on  his  own  judg- 


ment, but  on  that  of  the  seller,  who  knew, 
or  might  have  known,  the  existence  of  the 
defects ;  and  second,  where  a  manufac- 
turer, or  producer,  undertakes  to  furnish 
articles  of  his  manufacture  or  produce,  in 
answer  to  an  order.  5th.  That  goods  sold 
by  sample,  correspond  with  the  sample,  in 
quality.  Another  exception  to  the  rule, 
that  a  purchaser  ordinarily  buys  at  his 
own  risk,  is,  where  the  vendor  has  been 
guilty  of  fraudulent  representation  or  con- 
cealment." 

1  The  time  within  which  a  personal  ac- 
tion may  be  brought,  is  different  in  the 
different  States.  In  Pennsylvania,  by  an 
act  of  the  27th  of  March,  1713,  it  is  en- 
acted, that  "All  actions  of  trespass  guare 
clausumf regit,  all  actions  of  detinue,  trover, 
and  replevin,  for  taking  away  goods,  and 
cattle,  all  actions  upon  account,  and  upon 
the  case,  other  than  such  accounts  as  con- 
cern the  trade  of  merchandise,  between 
merchant  and  merchant,  their  factors  or 
servants,  all  actions  of  debt,  grounded 
upon  any  lending  or  contract,  without 
specialty,  all  actions  of  debt  for  arrearages 
of  rent,  except  the  proprietaries'  quit- 
rents,  and  all  actions  of  trespass,  of  as- 
sault, menace,  battery,  wounding,  and 
imprisonment,  or  any  of  them,  which  shall 
be  sued  or  brought  at  any  time  after  the 
25th  day  of  April,  which  shall  be  in  the 
year  of  our  Lord,  1713,  shall  be  com- 
menced and  sueii  within  the  time  and 
limitation  hereafter  expressed,  and  not 
after ;  that  is  to  say,  the  said  actions  upon 
the  case,  other  than  for  slander,  and  the 
said  actions  for  account,  and  the  said  ac- 
tions for  trespass,  debt,  detinue,  and  re- 
plevin for  goods  or  cattle,  and  the  said 
actions  of  trespass  guare  clausum  fregit, 
within  six  years  next  after  the  cause  of 
such  actions  or  suit,  and  not  after.  And 
the  said  actions   of  trespass,   of  assault, 


OF   TITLE. 


400 


Choses  in  action,  whether  legal  or  equitable,  differ  from  choscs  in 
possession  in  this,  that  the  title  to  them  is  endangered  rather  than 
strengthened  by  the  Statutes  of  Limitation.  This  difference  arises  from 
the  nature  *of  the  property.  Goods  and  chattels  may  exist  n^,,^^-, 
without  any  owner ;  but  if  there  cease  to  be  a  person  entitled  to  ^  -^ 
a  debt,  the  debt  itself  ceases  to  exist.  The  time  within  which  actions 
or  suits  may  be  brought  for  the  recovery  of  choses  in  action  varies  accord- 
ing to  the  nature  of  the  security.  The  law  on  this  subject  has  been  ren- 
dered somewhat  difficult  by  two  different  acts  of  parliament(m)  varying 
from  each  other,  passed  the  same  session  of  parliament,  and  each  intended 
to  amend  the  law.  The  following,  however,  appear  to  be  the  distinctions. 
If  the  chose  in  action  be  money  secured  by  any  mortgage,  judgment(7i) 
or  lien,  or  otherwise  charged  upon  or  payable  out  of  any  real  estate  at 
law  or  in  equity,  or  any  legacy,  (o)  or  the  personal  estate  or  any  share  of 
the  personal  estate  of  a  person  who  has  died  intestate,(p)  no  action  or 
suit  can  be  brought  to  recover  the  same  but  within  twenty  years  next 
after  a  present  right  to  receive  the  same  shall  have  accrued  to  some  person 
capable  of  giving  a  discharge  for  or  release  of  the  same  ;  unless  in  the 
meantime  some  part  of  the  principal  money,  or  some  interest  thereon, 
shall  have  been  paid,  or  some  acknowledgment  of  the  right  thereto  shall 


{m)  Stats.  3  &  4  Will.  IV.  cc.  27,  42. 
(o)  Sheppard  v.  Duke,  9  Sim.  567. 


(w)  Watson  v.  Birch,  15  Sim.  523. 
{p)  Stat.  23  &  24  Vict.  c.  38,  s.  13. 


menace,  battery,  wounding,  imprisonment, 
or  any  of  them,  within  two  years  next 
after  the  cause  of  such  actions  or  suits, 
and  not  after.  And  the  said  actions  upon 
the  case  for  words,  within  one  year  next 
after  the  words  spoken,  and  not  after :" 
Purd.  Dig.  (1861),  p.  655. 

In  New  Hampshire,  it  is  provided,  that 
"Actions  of  trespass  to  the  person,  and 
actions  for  defamatory  words,  may  be 
brought  within  two  years,  and  all  other 
personal  actions  within  six  years  after  the 
cause  of  action  accrued,  and  not  after- 
ward. Actions  of  debt  upon  judgments, 
recognisances,  and  contracts  under  seal, 
may  be  brought  within  twenty  years  after 
the  cause  of  action  accrued,  and  not  after- 
ward:" Gen.  Stats,  of  N.  H.,  p.  408,  Chap, 
ccii.,  sees.  3  &  4.  For  statutes  of  limita- 
tion of  personal  actions,  see  Stats,  of  S.  C. 
vol.  ii.,  p.  585,  &c. ;  Caruthers  &  Nichol- 
son's Stat.  Laws  of  Tenn.,  p.  439,  &c. ; 
Laws  of  Del.  Rev.   Code   (1852),  p.   440, 


&c. ;   Dig.   of  the   Stats,  of  Arkansas,   p. 
696,  &c. ;   How.  &  Hutch.   Stat.   Laws   of 
Miss.,  p.  569,  &c. ;  New  Dig.  Laws  of  Ga. 
(1851)  by  T.  R.  R.  Cobb,  vol.  1,  pp.  561, 
562,  564,  566  ;  Thompson's   Dig.  Laws  of 
Fla.,  p.  441,  &c. ;  Rev.  Stats,  of  Vt.  (1839), 
p.  305,  &c. ;  Clay's  Ala.  Dig.  p.  326,  &c. 
Rev.  Stats,  of  ^.  C.  (183G-7),  p.  372,  &c. 
Paschall's  Dig.  Laws  of  Texas,  p.  758,  art 
4604;  2  Mattbews's  Dig.  Va.  (1857),  p.  405 
&c. ;  3  Rev.  Stats,  of  New  York  (5th  ed.) 
p.  505 ;  Compiled  Laws  of  Michigan,  vol 
ii.  (1857),  p.  1406,  &c. ;  1  Md.  Code  (1860) 
p.  395,  &c.  ;   Supple.  Md.  Code,  p.  153,  art 
57,  sec.  1 ;  Gen.  Stats,  of  Mass.  (1860)  p 
777,  &c. ;   Rev.  Stats,  of  Maine   (1857)  p 
509,  &c. ;   Nixon's   Dig.  of  N.J.   (1868)  p 
509,   &c. ;   2   Rev.  Stats,  of  Ky.  (I860)  p, 
126,  &c. ;  2  Rev.  Stats,  of  Ohio  (1860),  p.  947 
&c.  >  Wood's  Cal.  Dig.  (1860),  p.  45,  &c. 
Rev.  Stats,  of  Miss.   (1845),  p.  716,   &c. 
Gen.   Stats,  of  Kansas   (1868),  art.  iii.,  p 
632,  &c. 


401  OF   TITLE. 

have  been  given  in  Avriting  signed  by  the  person  by  whom  the  same  shall 
be  payable,  or  his  agent,(r/)  to  the  person  entitled  thereto  or  his  agent  ;{r) 
and  in  such  case  no  such  action  or  suit  shall  be  brought  but  within  twenty 
years  after  such  payment  or  acknowledgment,  or  the  last  of  such  payments 
or  acknowledgments,  if  more  than  one,  was  made  or  given. (s)  If  the 
f'^dOOl    *chose  in  action  be  rent  due  upon  an  indenture  of  demise,  or 

money  secured  by  bond  or  other  specialty,  or  by  a  recognisance, 
an  action  must  also  be  brought  within  tivcnty  years  after  the  cause  of 
such  action, (^)  or  wuthin  twenty  years  after  the  removal  of  any  of  the 
disabilities  of  infancy,  coverture  or  lunacy.(w)  And  if  any  person  against 
whom  there  is  any  such  cause  of  action  shall  be  beyond  the  seas  at  the 
time  such  cause  of  action  accrued,  the  person  entitled  to  any  such  cause 
of  action  may  bring  the  same  against  him  within  twenty  years  after  his 
return. (t;)  And  the  absence  of  a  joint  debtor  beyond  the  seas  will  not 
prevent  time  from  running  in  favor  of  the  others,  who  may  not  be  beyond 
the  seas  ;  and  the  recovery  of  judgment  against  them  will  not  prevent 
the  creditor  from  commencing  an  action  against  the  absent  debtor  after 
his  return.(a;)  If  any  acknowledgment  shall  have  been  made,  either  by 
writing  signed  by  the  party  liable,(?/)  or  his  agent,  or  by  part  pay- 
ment or  part  satisfaction  on  account  of  any  principal  or  interest  then 
due,  the  person  entitled  may  bring  his  action  for  the  money  remaining 
unpaid,  and  so  acknowledged  to  be  due,  within  twenty  years  after  such 
acknowledgment,  or  within  twenty  years  after  any  of  the  above 
mentioned  disabilities  shall  have  ceased,  or  the  party  liable  shall 
returned  from  beyond  the  seas,  as  the  case  may  be. (2)  If  the 
chose  in  action  consist  of  arrears  of  dower,  neither  such  arrears  nor 
damages  on  account  thereof  can  be  recovered  or  obtained  by  any 
action  or  suit  for  a  longer  period  than  six  years  next  before  the 
r*4-0m    *commencement  of  such  action  or  suit.(a)     Arrears  of  rent  or 

of  interest  in  respect  of  any  sum  of  money  charged  upon  or 
payable  out  of  any  real  estate  or  in  respect  of  any  legacy,  can  be  re- 
covered only  within  six  years  next  after  the  same  shall  have  become  due, 

{q)  Lord  St.  John  v.  Boughton,  9  Sim.  219. 

(r)  Blair  v.  Nugent,  3  Jones  &  Lat.  673,  677. 

(s)  Stat.  3  &  4  Will.  IV.  c.  27,  s.  40.  {t)  Stat.  3  &  4  Vill.  IV.  c.  42,  s.  3. 

(m)  Stat.  3  &  4  Will.  IV.  c.  42,  s.  4  ;  19  &  20  Vict.  c.  97,  s.  10;  Pardo  v.  Bingham,  L. 
C,  17  W.  R.  419. 

{v)  Stat.  3  &  4  Will.  IV.  c.  42,  s.  4.  (z)  Stat.  19  &  20  Vict.  c.  97,  s.  11. 

(;/)  See  Roddam  v.  Jlorley,  1  De  G.  &  J.  1  ;  Moodie  v.  Bannister,  4  Drew.  432  ;  Coope 
V.  Crcsswell,  L.  C,  Law  Rep.  2  Ch.  Ap.  112. 

{z)  Stat.  3  &  4  Will.  IV.  c.  42,  s.  5  ;  Kempe  v.  Gibbon,  9  Q.  B.  609  (E.  G.  L.  R.  vol. 
58). 

(a)  Stat.  3  &  4  Will.  IV.  c.  27,  s.  41. 


OF   TITLE.  403 

or  next  after  an  acknowledgment  of  the  same  in  writing  shall  have  been 
given  to  the  person  entitled  thereto,  or  his  agent,  signed  by  the  person 
by  whom  the  same  was  payable,  or  his  agent.(5)     But  if  such  arrears  are 
secured  to  the  claimant(c)  by  indenture   of  demise, ((?)  or  by  bond  or 
other  specialty,(<?)  an  action  of  debt  or  covenant  may  be  brought  for  such 
arrears  at  any  time  within  twenty  years.     And  where  a  mortgagee  or 
other  incumbrancer  shall  have  been  in  possession  of  any  real  estate 
within  one  year  next  before  the  action  or  suit  of  a  subsequent  mortgagee 
or  incumbrancer,  the  latter  may  recover  the  arrears  of  interest  which 
may  have  become  due  to  him  during  the  whole  time  that  the  prior  mort- 
gagee or  incumbrancer  was  in  possession. (/)     If  the  chose  in  action 
consist  of  a  simple  contract  debt,  it  must  be  sued  for  within  six  years 
next  after  the  cause  of  action,  or  within  six  years  next  after  the  re- 
moval of  any  of  the  disabilities  of  infancy,  coverture  or  lunacy.(^)     And 
no  acknowledgment  or  promise  by  words  only  to  pay  such  debt  shall  be 
deemed  sufficient  evidence  of  a  new  or  *continuing  contract  to    p4Q  n 
take  the  case  out  of  the  operation  of  the  statute,  unless  such 
acknowledgment  or  promise   shall  be  made  in  writing,  signed  by   the 
party  chargeable  thereby, (/i)  or  his  agent.(i)^     Actions  of  debt  upon  any 
award  where  the  submission  is  not  by  specialty,  or  for  any  fine  due  in 
respect  of  any  copyhold  estates,  or  for  an  escape,  or  for  money  levied  on 
any /m  facias,  must  also  be  brought  within  six  years  after  the  cause  of 
action,  with  a  similar  saving  in  respect  of  disabilities  to  that  applicable 
in  the  case  of  actions  on  indentures  of  demise,  bonds  or  other  special- 
ties.(7c)     And  actions  for  penalties,  damages  or  sums  of  money  given  to 
the  party  grieved  by  any  statute  now  or  hereafter  to  be  in  force,  must 
be  brought  within  tivo  years  after  the  cause  of  such  actions,  with  the  like 

{b)  Stat.  3  &  4  Will.  IV.  c.  27,  s.  42  ;  Hodges  v.  Croydon  Canal  Company,  3  Bear. 
86  ;  Francis  v.  Grover,  5  Hare  39 ;  Humfrey  v.  Gery,  7  C.  B.  567  (E.  C.  L.  R.  vol.  62) . 
See  Toft  v.  Stevenson,  5  De  G.,  M.  &  G.  735  ;  Mason  v.  Broadbent,  33  Beav.  296 ;  Ed- 
mund V.  Waugh,  V.-C.  K.,  14  W.  R.  257  ;  1  Law  Rep.  Eq.  418  ;  Bowyer  v.  Woodman, 
V.-C.  W.,  Law  Rep.  3  Eq.  313. 

(c)  Hughes  V.  Kelly,  3  Dru.  &  Warren  482. 

{d)  Paget  V.  Foley,  2  New  Ca.  679. 

(e)  Sims  v.  Thomas,  12  Ad.  &  E.  536  (E.  C.  L.  R.  vol.  40)  ;  Hunter  v.  Nockolds,  1 
Macn.  &  G.  640.  See  Elvy  v.  Norwood,  5  De  G.  &  Sm.  240  ;  Sinclair  v.  Jackson,  17 
Beav.  405. 

(/)  Stat   3  &  4  Will.  IV.  c.  27,  s.  42. 

{g)  Stat.  21  Jac.  I.  c.  16,  ss.  3,  7  ;   19  &  20  Vict.  c.  97,  ss.  10,  12. 

{h)  Stat.  9  Geo.  IV.  c.  14,  s.  1. 

\i)  Stat.  19  &  20  Vict.  c.  97,  s.  13  ;  see  ante,  pp.  77,  82. 

{k)  Stat.  3  &  4  Will.  IV.  c.  42,  ss.  3,  4 ;  see  ante,  p.  402. 


1  See  ante,  p.  76,  notes. 


404 


OF   TITLE. 


saving  in  respect  of  disabilities,  unless  the  time  for  bringing  such  action 
is  or  sliall  be  by  any  statute  specially  limited. (Z) 

When  a  cause  of  action  accrues  to  a  person  in  his  lifetime,  the  time 
limited  by  the  Statutes  of  Limitation  will  run  on  after  his  decease  from 
the  period  that  the  cause  of  action  accrued,  and  will  not  be  reckoned 
from  the  time  that  administration  was  taken  out  to  his  effects.(wi)  But 
if  the  cause  of  action  accrue  after  the  death  of  the  party,  the  time  lim- 
ited by  the  statute  will  run  only  from  the  grant  of  the  letters  of  adniinis- 
tration.(w)  On  the  other  hand,  the  death  of  the  debtor  and  the  absence 
of  any  personal  representative  to  his  effects,  Avill  not  prevent  the  time 
limited  by  the  statute  from  continuing  to  run  on.^  For  if  there  be 
r*4.0^1  ^"^^  ^  cause  of  action,  a  plaintiff  that  can  sue,  and  a  defendant 
^  -"  *that  can  be  sued  in  England,  the  time  limited  by  the  statute 
will  begin  to  run,  and  will  not  be  stopped  by  the  decease  of  either  party. (o) 
An  executor  or  administrator  is  not,  however,  bound  to  plead  the 
Statute  of  Limitations  to  any  debt  or  demand,  but  may,  if  he  please,  pay 
the  same  notwithstanding  the  time  limited  by  the  statute  may  have  ex- 
pired.(p)^     But  if  the  estate  be  administered  in  the  Court  of  Chancery, 


(/)  Stat.  3  &  4  Will.  IV.  c.  42,  ss.  3,  4.         (m)  2  AVms.  Saund.  63  k. 

(n)  Murray  v.  East  India  Companj-,  5  B.  &  Aid.  204  (E.  C.  L.  R.  vol.  7)  ;  Perry  v. 
Jenkins,  1  Myl.  &  Cr.  118. 

(o)  Rhodes  v.  Smethurst,  6  M.  &  W.  351  ;  Freake  v.  Cranefeldt,  3  Myl.  &  Cr.  499; 
Sturgis  V.  Darrell,  6  H.  &  N.  120. 

(p)  Norton  v.  Frecher,  1  Atk.  526  ;  Ex  parte  Dewdney,  15  Ves.  498.  See  Stahl- 
schmidt  v.  Lett,  1  Sm.  &  G.  415. 


1  In  Pennsylvania,  debts  not  of  record, 
are  liens  against  a  decedent's  estate  for 
five  years  from  the  time  of  his  death,  and 
this  is  irrespective  of  the  time  the  Statute 
of  Limitations  has  yet  to  run  as  regards 
any  such  debt,  provided  the  running  of 
the  statute  was  not  completed  at  the  time 
of  his  death  :  McClintock's  Ap.,  29  Penn. 
St.  360 ;  Demmy's  Ap.,  43  Id.  155 ;  McCand- 
less's  Est.,  61  Id.  9. 

'^  An  executor  or  administrator  is  not 
bound  to  interpose  the  general  Statute  of 
Limitations,  in  bar  of  the  recovery  of  a 
demand  against  the  estate,  which  is  other- 
wise well  founded:  Hodgon,  Admr.,  v. 
White  et  al.,  11  N.  H.  108  ;  Leigh,  Admr., 
V.  Smith  ct  al.,  3  Ired.  Eq.  442  ;  Walter  v. 
Radcliffe,  Admr.,  et  al.,  2  Desauss.  577  ; 
Kennedy's  Ap.,  4  Penn.  St.   149  ;  Brown 


et  al.,  Admrs.,  v.  Porter,  7  Humph.  373  ; 
Barnawell  v.  Smith,  5  Jones  Eq.  168  ;  nor 
can  the  legatees  or  creditors  of  the  dece- 
dent require  them  to  do  so  :  In  the  matter 
of  Smith,  1  Ash.  352  ;  Leigh,  Admr.,  v. 
Smith  et  al.,  3  Ired.  Eq.  442;  but  they 
may  themselves  intervene  and  plead  the 
statute  :  Campbell  v.  Fleming,  63  Penn. 
St.  242  ;  but  the  court  will  not  allow  a 
sale  of  the  real  estate  of  the  testator  or  in- 
testate, for  the  purpose  of  paying  a  debt 
barred  by  the  statute :  The  Heirs  of 
Bond  V.  Smith,  Admr.,  2  Ala.  660. 
Where,  however,  for  the  more  speedy  set- 
tlement of  the  estates  of  decedents,  stat- 
utes have  been  passed,  enacting  that  all 
claims,  not  presented  within  a  certain 
time  after  his  death,  shall  be  barred,  it  is 
the  duty  of  the  executor  or  administrator 


OF   TITLE. 


405 


any  party  to  the  suit  is  competent  to  take  the  objection,  although  the 
executor  may  not  have  insisted  on  it.{q) 

Notwithstanding  the  period  of  six  years  limited  for  the  payment  of  sim- 
ple contract  debts,  the  debtor  may  by  charging  his  real  estate  by  his  will 
with  the  payment  of  his  debts,  and,  «  fortiori,  by  creating  an  express 
trust  for  their  payment  out  of  his  real  estate,  prevent  the  operation  of 
the  statute  on  all  such  debts  as  have  not  been  barred  by  the  statute  in 
his  lifetime. (r)  Real  estate,  it  will  be  remembered,  was  not  formerly 
liable  to  the  payment  of  any  debts  which  were  not  secured  by  specialty 
binding  the  heirs  ;(s)  and  the  alteration,  which  in  this  respect  has  been 
made  in  the  law,  aftects  only  such  real  estates  as  have  not  been  charged 

(q)  Shewen  v.  Vanderhorst,  1  Russ.  &  My.  347  ;  2  Russ.  &  My.  75. 

(r)  Burke  v.  Jones,  2  Ves.  &  B.  275 ;  Hughes  v.  Wynne,  Turn,  &  Russ.  307  ;  Crallan 
V.  Oulton,  3  Beav.  1. 

(s)  See  Principles  of  the  Law  of  Real  Property  57,  1st  ed.  ;  61,  2d  ed.  ;  64,  3d  and 
4th  eds. :  68,  5th  ed.  ;  72,  6th  ed. ;  74,  7th  ed.  ;  75,  8th  ed.;  ante,  p.  105. 


to  plead  the  statute  :  Hodgon,  Admr.,  v. 
White  et  al.,  11  N.  H.  208  ;  Brown  v.  An- 
derson, 13  Mass.  301 ;  Thompson  v.  Brown, 
16  Id.  172  ;  Emerson  v.  Thompson,  Id. 
429  ;  Heath  v.  Wells,  5  Pick.  140  ;  Tun- 
stall  et  al.  V.  Pollard's  Admr.,  11  Leigh  2  ; 
Brown  et  al.,  Admrs.,  v.  Porter,  7  Humph. 
373. 

A  debt  is  not  revived  by  the  promise  of 
an  administrator  to  pay  it :  McCann  v. 
Sloan,  25  Md.  575  ;  Campbell  v.  Fleming, 
63  Penn.  St.  242. 

Whether  one  administrator  may  charge 
the  estate,  by  refusing  to  plead  the  Stat- 
ute of  Limitations,  although  his  co-admin- 
istrator insist  on  pleading  it,  is  doubted  ; 
but  if  one  of  the  administrators  stand 
neutral,  the  other  may  plead  the  statute  : 
Scull  et  al.,  Admrs.,  v.  Exrs.  of  Wallace, 
15  S.  &  R.  231. 

In  the  case  of  Smith  v.  Porter  et  al., 
Exrs.,  1  Binn.  209,  Chief  Justice  Tilgh- 
man,  in  deciding  that  a  debt,  which  is 
barred  by  the  act  of  limitations,  is  not  re- 
vived by  a  clause  in  a  will,  ordering  all 
the  testator's  just  debts  to  be  paid,  says, 
"  Whether  the  debts  are  just  or  not,  must 
be  left  to  the  judgment  of  the  executor, 
before  he  makes  a  voluntary  payment ; 
and   if,   upon  a  candid   examination,   he 


thinks  a  debt  not  justly  due,  it  would  be 
doing  violence  to  the  words  of  the  testa- 
tor, so  to  construe  them,  as  to  deprive  the 
executor  of  the  legal  means  of  defence,  by 
pleading  the  act  of  limitations.  But  an 
executor  ought  not  to  plead  that  act 
against  a  just  debt ;  on  the  contrary,  if  he 
knows  it  to  be  just,  I  think  it  is  as  dis- 
honest in  him  to  use  that  plea,  as  it 
would  be  in  the  case  of  his  own  debt." 
But  since  the  decision  of  Lewis,  J.,  in 
Kittera's  Estate,  17  Penn.  St.  423,  pru- 
dence would  suggest  to  an  administrator 
or  executor,  the  propriety  of  pleading  the 
statute,  whenever  applicable. 

The  death  of  a  debtor  does  not  suspend 
the  running  of  the  statute,  as  it  respects  a 
creditor's  right  of  action  ;  but  it  cannot  be 
pleaded  in  bar  of  his  claim,  where  he 
proceeds  in  the  Orphans'  Court  for  a  dis- 
tributive proportion  of  the  decedent's 
estate  ;  and  the  reason  is,  that  it  acts 
upon  the  remedy,  and  takes  away  the  right 
of  action  unless  suit  is  brought  within  the 
time  limited,  but  it  does  not  extinguish 
the  debt,  nor  effect  a  trust  created  for  its 
payment,  as  long  as  the  trust  subsists, 
and  is  acknowledged  and  acted  upon  by 
the  parties  :  McCandless's  Est.,  61  Penn. 
St.  9. 


405  OP   TITLE. 

by  the  deceased  with  the  payment  of  his  debts.  The  creditors  therefore 
in  whose  favor  the  charge  is  made  acquire,  as  before  the  alteration,  the 
character  of  cestui  que  trusts  ;  and  in  equity  they  will  not  be  allowed  to 
r*40fil  ^°^®  *^^^^'  *debts,  because  they  do  not  go  to  law  to  enforce  pay- 
'-  ^  mcnt  when  they  have  a  trustee  to  pay  them.(i)  But  after 
twenty  years  the  charge,  if  not  enforced,  will  be  barred  like  any  other 
charge.(?*)  An  express  trust,  however,  is  proof  against  any  length  of 
time.(t')  But  as  personal  estate  has  always  been  primarily  liable  to  the 
payment  of  all  debts,  a  trust  created  by  a  testator  for  the  payment  of 
his  debts  out  of  his  personal  estate  will  not  prevent  the  operation  of  the 
statute,  (a:) 

When  the  dividends  upon  any  stock  transferable  at  the  Bank  of  Eng- 
land have  not  been  claimed  for  ten  years,  such  stock,  together  with  the 
unclaimed  dividends,  is  transferred  to  the  account  of  the  commissioners 
for  the  reduction  of  the  national  debt ;(?/)  and  such  dividends,  together 
with  all  the  future  dividends  on  the  stock,  are  invested  by  the  commis- 
sioners in  the  purchase  of  like  stock,  so  as  to  accumulate.(3)  And  the 
governor  or  deputy  governor  of  the  bank  for  the  time  being  may  order 
the  transfer  of  such  stock  and  the  payment  of  the  dividends  to  any  per- 
son showing,  to  his  satisfaction,  a  right  thereto ;  but  in  case  such  gov- 
ernor or  deputy  governor  shall  not  be  satisfied  of  the  justice  or  legality 
of  the  claim,  an  order  for  transfer  and  payment  may  be  obtained  from 
the  Court  of  Chancery  by  petition  in  a  summary  way,  stating  and  veri- 
fying the  claim. (a)  But  no  such  transfer  of  stock  or  payment  of  divi- 
r*4.07n  dends,  exceeding  the  sum  of  20Z.,  can  be  made  until  three  *calen- 
*-  dar  months  after  the  application,  nor  until  notice  has  been  adver- 

tised in  one  or  more  newspapers  circulating  in  London  and  elsewhere,  as 
the  governor  and  company  of  the  bank  shall  think  fit ;  which  notice  must 
state  the  name,  description  and  condition  of  the  person  in  whose  name 
the  unclaimed  stock  or  dividends  stood  when  transferred  to  the  commis- 
sioners, and  the  amount  thereof,  and  the  name  of  the  claimant,  and  the 
time  at  which  the  transfer  or  payment  will  be  made  if  no  other  claimant 

{t)  Turn.  &  Russ.  309. 

(m)  Dundas  v.  Blake,  11  Ir.  Eq.  Rep.  138  ;  Sug.  Real  Prop.  Stat.  p.  107  ;  Jacquet 
V.  Jacquetj  27  Beav.  322  ;  Dickinson  v.  Teesdale,  31  Beav.  511. 

[v]  See  the  author's  Essay  on  Real  Assets,  p.  40. 

{x)  Scott  V.  Jones,  4  CI.  &  Fin.  382  ;  Freake  t>.  Cranel'edlt,  3  Myl.  &  Cr.  499. 

\y)  Stats.  56  Geo.  III.  c.  60  ;  8  &  9  Vict.  c.  62. 

(z)  Stat.  56  Geo.  III.  c.  60,  s.  4. 

{a)  Stat.  50  Geo.  III.  c.  60,  s.  5  ;  24  Vict.  c.  3,  s.  8  ;  Ex  parte  Ram,  3  Myl.  &  Cr.  25  ; 
Hunt  V.  Peacock,  6  Hare  301. 


OF   TITLE. 


407 


shall  soon  appear  and  make  out  his  claim.  And  when  the  stock  or  divi- 
dends are  directed  to  be  transferred  or  paid  by  any  order  of  tlie  Court 
of  Chancery,  the  notice  must  also  state  the  purport  or  effect  of  such 
order  •,{b)  and  any  person  may  at  any  time  before  the  actual  retransfer 
of  the  stock,  or  payment  of  the  dividends  to  any  such  claimant,  apply  to 
the  Court  of  Chancery  by  motion  or  petition  to  rescind,  alter  or  vary  any 
order  made  for  such  transfer  or  payment. (c) 

When  a  chose  in  action,  whether  legal  or  equitable,  is  transferred  from 
one  person  to  another,  notice  of  the  assignment  should  be  given  by  the 
transferee  to  the  person  liable  to  the  action  at  law  or  suit  in  equity,  the  right 
to  bring  which  is  the  subject  of  the  transfer.(cZ)  Thus  if  a  debt  be  as- 
signed, notice  of  assignment  should  be  given  to  the  debtor.^     If  the 

(b)  Stat.  8  &  9  Vict.  c.  G2,  s.  2.  (c)  Sect.  3. 

(d)  Dearie  v.  Hall,  Loveridge  v.  Cooper,  3  Russ.  1 ;  Bright's  Trusts,  21  Bear.  430. 


^  An  assignment  of  a  chose  in  action  is 
valid,  in  equity,  if  made  upon  a  good  con- 
sideration, and  witli  notice  to  the  debtor: 
Admr.  of  Sheftall  v.  Admr.  of  Clay,  Charlt. 
230 ;  Anderson  et  al.  v.  Van  Allen,  12 
Johns.  343  ;  Briggs  v.  Dorr,  19  Id.  95  ;  Van 
Vechten  v.  Graves,  4  Id.  403  ;  Littlefield  w. 
Story,  3  Id.  425  ;  Wardell  v.  Eden,  2  Johns. 
Cas.  121 ;  Henry  v.  Milham,  1  Green  266; 
Perkins  v.  Parker,  1  Mass.  117;  Corser  u. 
Craig,  1  Wash.  C.  C.  424  ;  Noyes  v.  Brown, 
33  Vt.  431  ;  but  the  debtor  should  have 
notice  of  the  transfer  :  Wood  v.  Partridge, 
11  Mass.  491  ;  Foster  v.  Sinkler,  4  Id.  450; 
Comstock  V.  Faruum,  2  Id.  97  ;  Davenport 
V.  Woodbridge  8  Greenlf.  18  ;  for,  as  was 
said  in  the  latter  case,  "although  upon  the 
assignment,  the  original  creditor  ceases  to 
be,  for  any  beneficial  purpose,  the  owner 
of  the  demand,  and  cannot  receive  it,  or 
any  part  of  it,  to  his  own  use ;  yet  if  the 
debtor,  ignorant  of  such  assignment,  make 
payments  to  him,  they  are  to  be  allowed 
in  his  favor.  And  this  qualification  of  the 
right  of  the  assignee,  is  for  the  equitable 
protection  of  the  debtor.  But  if  the  latter 
has  notice  of  the  assignment,  what  he 
afterwards  pays  to  the  original  debtor,  he 
pays  in  his  own  wrong ;"  and  notwith- 
standing such  payments,  he  will  still  be 
liable  to  the  assignee  :  Stevens  v.  Stevens, 
1  Ash.  190  ;  Jones  v.  Whitter,  13  Mass.  307 ; 
Jenkins  v.  Brewster,  14  Id.  291 ;  Littlefield 


V.  Story,  3  Johns.  425  ;  Clark  v.  Rogers,  2 
Greenl.  143  ;  Swett  v.  Green,  4  Id.  384  ; 
Holland  v.  Dale,  Minor  265  ;  and  so  also,  if 
after  an  assignment  with  notice,  the  ori- 
ginal creditor  execute  a  release,  the  claim 
is  not  thereby  extinguished :  Welsh  v. 
Manderville,  1  Wheat.  236  ;  s.  c,  5  Id.  277  ; 
Cowan  V.  Shields,  1  Overt.  314 ;  Dunn  v. 
Snell,  15  Mass.  485  ;  Raymond  v.  Squire,  11 
Johns.  47 ;  Andrews  v.  Becker,  1  Johns. 
Cas.  411  ;  Strong  v.  Strong,  2  Aik.  373  ; 
Eastman  v.  Wright,  6  Pick.  316;  Wheeler 
V.  Wheeler,  9  Cowen  34. 

Actual  notice,  however,  of  a  transfer,  is 
not  necessary,  for  if  a  party  acts  in  the 
face  of  facts  and  circumstances  which 
were  sufficient  to  put  him  upon  inquiry, 
he  acts  contrary  to  good  faith,  and  on  his 
peril :  Anderson  et  al.  v.  Van  Allen,  12 
Johns.  343 ;  Tritts,  Admr.,  v.  Colwell's 
Admr.,  31  Penn.  St.  228  ;  as  was  said  in 
the  case  of  Johnsouv.  Bloodgood,  1  Johns. 
Cas.  52,  "  The  notice  by  which  parties  are 
affected,  is  either  express  or  implied ; 
under  the  head  of  implied  notice,  it  has 
been  held  in  a  court  of  equity,  ''that  what- 
ever is  sufficient  to  put  the  party  upon 
inquiry,  is  good  notice.' "  But  between 
the  parties  to  the  contract,  the  assignment 
will  be  good  without  notice,  either  express 
or  implied :  Bishop  v.  Ilolcombe,  10  Conn. 
444. 

At  law,  where  an  assignment  of  a  chose 


407  OF   TITLE. 

subject  of  the  assignment  be  the  right  to  stock  standing  in  the  name  of 
a  trustee,  notice  of  assignment  should  be  given  to  such  trustee.  Until 
such  notice  be  given,  it  is  evident  that  the  debtor  may  innocently 
pay  the  debt,  or  the  trustee  transfer  the  stock  to  the  transferor; 
or  the  transferor  may  fraudulently  transfer  his  right  over  again  to  a 
r*4081  *^^"'^^  person.  The  transferee,  therefore,  until  he  has  *given 
^  -^  notice  to  the  party  liable,  has  not  done  all  that  lies  in  his  power 
to  perfect  his  title.  The  chose  in  action  still  remains  the  apparent  pro- 
perty of  the  transferor ;  and  in  the  event  of  his  bankruptcy  it  would 
formerly  have  passed  to  his  assignees  as  property  in  his  order  and  dis- 
position with  the  consent  of  the  true  owner  thereof.(e)  This,  however, 
is  now  altered  by  the  Bankruptcy  Act,  1869,  which  expressly  excepts 
things  in  action,  other  than  debts  due  to  the  bankrupt  in  the  course  of 
his  trade  or  business. (/)  Even  the  assignees  themselves  would  formerly 
not  have  been  safe,  unless  they  had  given  a  similar  notice  to  the  person 
liable  to  the  action,  the  right  to  bring  which  was  transferred  to  them  by 
the  bankruptcy. (^y  The  importance  of  giving  notice  suggests  the  pre- 
caution that  every  person  about  to  accept  an  assignment  of  a  chose  in 
action  should  inquire  of  the  person  liable  to  the  action  or  suit,  whether  he 
has  had  notice  of  any  prior  assignment.  And  if  there  be  two  or  more 
persons  liable,  inquiry  should  be  made  of  every  one  of  them ;  for  notice 
by  a  prior  assignee  to  any  one  of  them  would  be  equivalent  to  notice  to 
all.(A)  It  is  also  advisable  that  a  written  answer  should  be  obtained  to 
every  such  inquiry,  in  order  that  if  the  assignee  should  be  misled  by  a 
false  answer,  he  may  be  enabled  to  recover  damages  for  the  misrepresen- 
tation. For  it  has  been  doubted  whether  the  answer  to  such  an  inquiry 
be  not  a  representation  concerning  the  ability  of  the  intended  assignor 
within  the  meaning  of  Lord  Tenterden's  act,  which  requires  *that 
■-         ^    all  such  representations  be  made  in  writing  signed  by  the  party 

(e)  Ex  parte  Munro,  Buck.  300  ;  Williams  v.  Thorpe,  2  Sim.  257  ;  Thompson  v.  Spiers, 
13  Sim.  469 ;  Bartlett  v.  Bartlett,  1  De  G.  &  J.  127  ;  Re  Hughes's  Trusts,  2  Hem.  &  Mil. 
89  ;  Re  Webb's  Policy,  V.-C.  M.,  15  W.  R.  529  ;  see  ante,  p.  54. 

(/)  Stat.  32  &  33  Vict.  c.  71,  s.  15,  par.  (5) 

(ff)  Re  Barr's  Trusts,  4  Kay  &  J.  219. 

(h)  Smith  V.  Smith,  2  Cr.  &  M.  231  ;  Meux  v.  Bell,  1  Hare  73,  87.  See  Browne  v. 
Savage,  4  Drew.  635,  640. 

in  action  has  been  made,  the  claim  should  bring   suit   in   his   own  name;  Mowry  v. 

generally  be  sued  in  the  name  of  the  as-  Todd,   12   Johns.  281;    Tiernan  et  al.   v. 

signor:   Admr.  of  Sheftall   v.    Admr.    of  Jackson,  5  Peters  597  ;  De  Barry «;.  Withers 

Clay,   Charlt.   230;   Boylston  t>.    Green,  8  et  al.,  44  Penn.  St.  356, 

Mass.   465 ;   but  where  the  party  who  is  See  ante,  p.  5  and  26,  notes. 

bound,  has  recognised  the  transfer,   and  i  See   ante,    p.    270,   note,  and   p.    151 

promised  to  pay  the  new  creditor,  he  may  note. 


OF   TITLE.  409 

to  be  charged  therewith. (e)  The  inquiry,  however,  thus  recommended 
will  not  of  itself  strengthen  the  title  of  the  assignee,  further  than  by 
assuring  him  that  no  previous  assignment  has  been  made.  In  order  to 
obtain  a  good  title,  he  must  himself  give  notice  to  the  person  or  one  of 
the  persons  liable  to  the  debtor  demand  assigned  to  him.  When  this  has 
been  done  his  title  will  be  secure,  and  will  prevail  over  that  of  any  un- 
known prior  assignee  who  may  have  omitted  to  give  such  notice. (y)  If 
the  property  consist  of  money  or  stock  standing  in  the  name  of  the 
accountant-general  of  the  Court  of  Chancery,  or  of  securities  in  his 
possession, (A;)  an  order  of  the  court  should  be  obtained  restraining  transfer 
or  payment  without  notice  to  the  assignee.  This  order  is  called  a  stop 
order,  and  will  have  the  same  effect  as  notice  of  assignment  given  to  any 
private  debtor.(Z)  If  the  property  be  stock  standing  in  the  name  of  a 
trustee,  who  has  died  without  any  administration  having  been  taken  out 
to  his  effects,  a  distringas  obtained  by  the  assignee  to  restrain  the  transfer 
of  the  stock  will  confer  on  him  the  same  priority  as  notice  to  the  trustee 
would  have  done  had  he  been  living.(w)  When  the  property  consists  of 
a  policy  of  assurance,  or  of  shares  in  a  joint-stock  company,  notice  of 
the  transfer  should  be  given  to  the  office  of  the  company. (w)  And  with 
respect  to  policies  of  life  assurance,  it  is,  as  we  have  seen,  now  provided 
that  a  written  notice  of  the  date  and  purport  of  the  assignment 
*must  be  given  to  the  company  in  order  to  pass  the  right  to  sue  r^A-i  at 
on  the  policy.(oy 

The  title  to  personal  property  sometimes  depends  upon  deeds,  wills  or 

{i)  Lyde  v.  Barnard,  M.  &  W.  101 ;  Swan  v.  Phillips,  8  Ad.  &  E.  457  (E.  C.  L.  R.  vol. 
35)  ;  see  ante,  p.  83. 

(/)  Dearie  v.  Hall,  Loveridge  v.  Cooper,  1  Russ.  1. 

[k)  Williams  v.  Sjmonds,  9  Beav.  523. 

{I)  Greening  v.  Beckford,  5  Sim.  195  ;  Swayne  v.  Swayne,  11  Beav.  463. 

(m)  Etty  V.  Bridges,  2  You.  &  Col.  N.  C.  466  ;  see  ante,  p.  205. 

{n)  Williams  v.  Thorpe,  2  Sim.  257  ;  Thompson  v.  Spiers,  13  Sim.  469  ;  West  v.  Reid, 
2  Hare  249  ;  Martin  v.  Sedgwick,  9  Beav.  333  ;  Powles  v.  Page,  3  C.  B.  16  (E.  C.  L.  R. 
vol.  54). 

(o)  Stat.  30  &  31  Vict.  c.  144,  s.  3 ;  ante,  p.  178. 


1  Almost  every  policy  of  insurance  con-  panies,  after  the  time  limited  for  notice  has 

tains  a  stipulation,  that  in  cage  of  an  as-  expired,  in  cases  which  are  free  from  sus- 

signment,  it  shall  be  approved  by  the  com-  picion   of    fraud    or   unfair  dealing;    and 

pany  within  a  certain  specified  time,  after  when  so  approved,  the   companies  waive 

such  transfer  ;  and  that,  in  default  of  such  all   benefit  which    they  might  have  taken, 

approval,     the     policy    shall,    ipso   facto,  from    the  want  of  notice  within  the  time 

become  null  and  void  ;  but  in  practice,  as-  required  by  the  policy, 
signments  are  approved  by  insurance  com- 


410  OF   TITLE. 

Other  documents  of  title  of  the  like  nature,  and  cannot  be  shown  without 
their  production.  Thus  a  reversionary  interest  in  money  in  the  funds, 
settled  by  deed  or  will,  may  be  mortgaged  and  sold  again  and  again  before 
it  becomes  an  interest  in  possession.  In  these  cases  the  purchaser  is 
entitled  to  an  abstract  of  the  deeds,  wills,  &c.,  which  compose  the  title, 
in  the  same  manner  as  if  the  subject  of  the  contract  had  been  real  estate  ; 
and  the  original  deeds,  and  the  probates  or  office  copies  of  the  wills,  must 
also  in  like  manner  be  produced  for  the  verification  of  the  abstract.(  j;) 
The  purchaser  is  also  entitled  either  to  the  possession  of  the  deeds,  or  if 
this  cannot  be  had,  to  attested  copies  of  them,  and  a  covenant  for  their 
production,  at  the  expense  of  the  vendor.(^)  And  when  an  assignment 
of  any  kind  of  personal  property  is  made  by  deed,  it  is  usual  for  the 
assignor  to  enter  into  covenants  for  the  title  similar  to  those  entered  into 
under  the  like  circumstances  by  the  grantor  of  real  estate.(r) 

The  vendor  of  shares  in  a  joint-stock  company  is  bound  merely  to 
give  such  evidence  of  the  constitution  of  the  company,  as  to  shoAV  that 
the  proposed  transfer  will  give  a  valid  title  to  the  shares  sold.(s) 

P^.^-,-,  *A  recent  act  of  parliament  provides  that  any  person  shall 
^  ^  have  power  to  assign  personal  property,  now  by  law  assignable, 
directly  to  himself  and  another  person  or  other  persons  or  corporation, 
by  the  like  means  as  he  might  assign  the  same  to  another.(^)  Before  this 
act  an  assignment  by  A.  to  himself  and  B.  of  leasehold  property  or 
choses  in  possession  vested  the  whole  of  the  property  in  B.  The  same 
act  renders  criminally  punishable  the  concealment,  with  intent  to  defraud, 
of  any  deed  or  instrument  material  to  a  title  or  of  any  incumbrance,  or 
the  falsification  of  any  pedigree  on  which  a  title  depends.(w) 

From  what  has  been  said  it  will  appear  that  the  title  to  personal  pro- 
perty is  far  more  simple  than  that  to  real  estate.  And  amongst  the  plans 
which  have  appeared  for  the  amendment  of  the  law  has  been  one  for 
adapting  the  machinery  of  the  funds  to  the  transfer  of  landed  property. 

{p)  See  Principles  of  the  Law  of  Real  Property  349,  1st  ed.';  351,  2d  ed. ;  364,  3d 
ed.  ;  370,  4th  ed.  ;  381,  5th  ed. ;  404,  6th  ed. ;  412,  7th  ed. ;  431,  8th  ed. ;  Hobson  v. 
Bell,  2  Beav.  17. 

(q)  Ibid.  354,  356,  1st  ed. ;  356,  358,  2d  ed. ;  369,  372,  3d  ed. ;  375,  378,  4th  ed. ;  389, 
5th  ed. ;  412,  6th  ed. ;  420,  7th  ed. ;  440,  8th  ed. 

(r)  See  Principles  of  the  Law  of  Real  Property  348,  1st  ed.';  349,  2d  ed. ;  362,  3d 
ed.  ;  368,  4th  ed. ;   379,  5th  ed. ;  402,  6th  ed. ;  410,  7th  ed. 

(a)  Curling  v.  Flight,  2  Phil.  613. 

(<)  Stat.  22  &  23  Vict.  c.  35,  s.  21. 

(u)  Sect.  24,  extended  by  stat.  23  &  24  Vict.  c.  38,  s.  8. 


OF  TITLE.  411 

Upon  consideration,  however,  it  will  perhaps  appear  that  the  greater 
complexity  of  the  title  to  lands  arises  partly  from  the  nature  of  the  pro- 
perty, and  partly  from  the  more  full  power  of  disposition  to  which  lands 
are  subject.  Lands,  unlike  stock,  may  be  converted  from  arable  to 
pasture,  may  be  cut  up  into  roads,  canals  or  railways,  may  be  sold  by  the 
foot  for  building  purposes,  may  be  let  upon  lease  for  terms  absolute  or 
determinable,  may  be  held  for  life,  or  in  tail,  as  well  as  in  fee,  and  may 
be  disposed  of  by  contingent  remainders,  shifting  uses  and  executory 
devises,  without  the  intervention  of  any  trustees.  Personal  property,  on 
the  contrary,  cannot  be  settled  without  the  intervention  of  trustees  in 
whom  a  great  degree  of  personal  confidence  must  necessarily  be  placed ; 
but  when  so  settled,  the  title  to  it  is  sometimes  as  long  and  intricate  as 
that  to  real  *estate.  If  the  nature  of  lands  could  be  altered,  r^^io-i 
or  if  landowners  were  willing,  in  order  to  save  themselves 
expense,  to  give  up  some  of  their  powers  of  disposition,  the  title  to 
real  estate  might  doubtless  be  rendered  as  simple  as  that  to  personal 
property.  To  the  latter  alternative,  however,  few,  if  any,  would  be 
inclined  to  submit.  Whilst,  therefore,  much  might  be  done  to  simplify 
and  improve  our  laws  of  property  by  an  assimilation  of  the  rules  of  real 
and  personal  estate,  where  the  history  of  each  forms  the  only  ground  of 
variety,  care  should  be  taken  to  preserve  untouched  such  distinctions 
as  are  founded  on  the  broad  basis  of  practical  difference. 


APPENDIX   (A), 

Referred  to,  p.  243. 


Form  of  Letters  Patent. 

Victoria  by  the  grace  of  God  of  tlie  United  Kingdom  of  Great  Britain  and 
Ireland  Queen  Defender  of  the  Faith  to  all  to  whom  these  presents  shall  come 

greeting  Whereas  A.  B.  of hath  by  his  petition  humbly  represented  unto 

us  that  he  is  in  possession  of  an  invention  for which  the  petitioner 

conceives  will  be  of  great  public  utility  That  he  is  the  true  and  first  inventor 
thereof  and  the  same  is  not  in  use  by  any  other  person  or  persons  to  the  best  of 
his  knowledge  and  belief  The  petitioner  therefore  most  humbly  prayed  that  we 
would  be  graciously  pleased  to  grant  unto  him  his  executors  administrators  and 
assigns  our  royal  letters  patent  for  the  sole  use  benefit  and  advantage  of  his  said 
invention  within  our  United  Kingdom  of  Great  Britain  and  Ireland  the  Channel 
Islands  and  Isle  of  Man  [Colonies  to  be  mentioned  if  any]  for  the  term  of 
fourteen  years  pursuant  to  the  statutes  in  that  ease  made  and  provided  [And 
WHEREAS  the  said  A.  B.  hath  particularly  described  and  ascertained  the  nature 
of  the  said  invention  and  in  what  manner  the  same  is  to  be  performed  by  an 
instrument  in  writing  under  his  hand  and  seal  and  has  caused  the  same  to  be 

duly  filed  in ]     And  we  being  willing  to  give  encouragement  to  all 

arts  and  inventions  which  may  be  for  the  public  good  are  graciously  pleased  to 
condescend  to  the  petitioner's  request  Know  ye  therefore  that  we  of  our  espe- 
cial grace  certain  knowledge  and  mere  motion  have  given  and  granted  and  by 
these  presents  for  us  our  heirs  and  successors  do  give  and  grant  unto  the  said  A. 
B.  his  executors  administrators  and  assigns  our  especial  license  full  power  sole 
privilege  and  authority  that  he  the  said  A.  B.  his  executors  administrators  and 
assigns  and  every  of  them  by  himself  *and  themselves  pr  by  his  or  their  r^^A-iA-i 
deputy  or  deputies  servants  or  agents  or  such  others  as  he  the  said  A.  B.    '-  -^ 

his  executors  administrators  or  assigns  shall  at  any  time  agree  with  and  no 
others  from  time  to  time  and  at  all  times  hereafter  during  the  term  of  years 
herein  expressed  shall  and  lawfully  may  make  use  exercise  and  vend  his  said 
invention  within  our  United  Kingdom  of  Great  Britain  and  Ireland  the  Channel 
Islands  and  Isle  of  .Man(a)  in  such  a  manner  as  to  him  the  said  A.  B.  his 
executors  administrators  and  assigns  or  any  of  them  shall  in  his  or  their  discre- 

(a)  The  Colonies  should  here  be  mentioned,  if  any,  though  it  is  not  so  stated  iu  the 
printed  form  annexed  to  the  Act. 
33 


414  APPENDIX. 

tion  seem  meet  and  that  he  the  said  A.  B.  his  executors  administrators  and 
assigns  shall  and  lawfully  may  have  and  enjoy  the  whole  profit  benefit  commodity 
and  advantage  from  time  to  time  coming  growing  accruing  and  arising  by 
reason  of  the  said  invention  for  and  during  the  term  of  years  herein  mentioned 
TO  HAVE  noLD  exercise  and  enjoy  the  said  licenses  powers  privileges  and 
advantages  hereinbefore  granted  or  mentioned  to  be  granted  unto  the  said  A.  B. 
his  executors  administrators  and  assigns  for  and  during  and  unto  the  full  end 

and    term  of  fourteen  years  from  the day  of A.  D. next  and 

immediately  ensuing  according  to  the  statute  in  such  case  made  and  provided 
And  to  the  end  that  he  the  said  A.  B.  his  executors  administrators  and  assigns 
and  every  of  them  may  have  and  enjoy  the  full  benefit  and  the  sole  use  and 
exercise  of  the  said  invention  according  to  our  gracious  intention  hereinbefore 
declared  AVe  do  by  these  presents  for  us  our  heirs  and  successors  require  and 
strictly  command  all  and  every  person  and  persons  bodies  politic  and  corporate 
and  all  other  our  subjects  whatsoever  of  what  estate  quality  degree  name  or 
condition  soever  they  be  within  our  United  Kingdom  of  Great  Britain  and 
Ireland  the  Channel  Islands  and  Isle  of  Man  [Colonies  to  be  mentioned  if 
any]  that  neither  they  nor  any  of  them  at  any  time  during  the  continuance  of 
the  said  term  of  fourteen  years  hereby  granted  either  directly  or  indirectly  do 
make  use  or  put  in  practice  the  said  invention  or  any  part  of  the  same  so  attained 
uuto  by  the  said  A.  B.  as  aforesaid  nor  in  anywise  counterfeit  imitate  or  resemble 
r*Al  e^l  *^^  same  nor  shall  make  or  cause  to  be  made  any  addition  *thereunto 
L  -'or  subtraction  from  the  same  whereby  to  pretend  himself  or  themselves 

the  inventor  or  inventors  devisor  or  devisors  thereof  without  the  consent  license 
or  agreement  of  the  said  A.  B.  his  executors  administrators  or  assigns  in  writing 
under  his  or  their  hands  and  seals  first  had  and  obtained  in  that  behalf  upon 
such  pains  and  penalties  as  can  or  may  be  justly  inflicted  on  such  offenders  for 
their  contempt  of  this  our  royal  command  and  further  to  be  answerable  to  the 
said  A.  B.  his  executors  administrators  and  assigns  according  to  law  for  his  and 
their  damages  thereby  occasioned  And  moreover  we  do  by  these  presents  for 
us  our  heirs  and  successors  will  and  command  all  and  singular  the  justices  of 
the  peace  mayors  sheriffs  bailiffs  constables  headboroughs  and  all  other  officers 
and  ministers  whatsoever  of  us  our  heirs  and  successors  for  the  time  being  that 
they  or  any  of  them  do  not  nor  shall  at  any  time  during  the  said  term  hereby 
granted  in  anywise  molest  trouble  or  hinder  the  said  A.  B.  his  executors  admin- 
istrators or  assigns  or  any  of  them  or  his  or  their  deputies  servants  or  agents  in 
or  about  the  due  and  lawful  use  or  exercise  of  the  aforesaid  invention  or  anything 
relating  thereto  Provided  always  and  these  our  letters  patent  are  and  shall 
be  upon  this  condition  that  if  at  any  time  during  the  said  term  hereby  granted 
it  shall  be  made  appear  to  us  our  heirs  or  successors  or  any  six  or  more  of  our 
or  their  Privy  Council  that  this  our  grant  is  contrary  to  law  or  prejudicial  or 
inconvenient  to  our  subjects  in  general  or  that  the  said  invention  is  not  a  new 
invention  as  to  the  public  use  and  exercise  thereof  or  that  the  said  A.  B.  is  not 
the  true  and  first  inventor  thereof  within  this  realm  as  aforesaid  these  our  letters 


APPENDIX.  415 

patent  shall  forthwith  cease  determine  and  be  utterly  void  to  all  intents  and 
purposes  anything  herein  contained  to  the  contrary  thereof  in  anywise  notwith- 
standing Provided  also  that  these  our  letters  patent  or  anything  herein 
contained  shall  not  extend  or  be  construed  to  extend  to  give  privilege  unto  the 
said  A,  B.  his  executors  administrators  or  assigns  or  any  of  them  to  use  or 
imitate  any  invention  or  work  whatsoever  which  hath  heretofore  been  found  out 
or  invented  by  any  other  of  our  subjects  whatsoever  and  publicly  used  or  exer- 
cised unto  whom  our  like  letters  patent  or  privileges  have  been  already  granted 
for  the  sole  use  exercise  and  benefit  *thereof  it  being  our  will  and  r^ici-ip-i 
pleasure  that  the  said  A.  B.  his  executors  administrators  and  assigns    -  -' 

and  all  and  every  other  person  and  persons  to  whom  like  letters  patent  or 
privileges  have  been  already  granted  as  aforesaid  shall  distinctly  use  and 
practise  their  several  inventions  by  them  invented  and  found  out  according  to 
the  true  intent  and  meaning  of  the  same  respective  letters  patent  and  of  these 
presents  Provided  likewise  nevertheless  and  these  our  letters  patent  are 
upon  this  express  condition  [that  if  the  said  A.  B.  shall  not  particularly  describe 
and  ascertain  the  nature  of  his  said  invention  and  in  what  manner  the  same  is 
to  be  performed  by  an  instrument  in  writing  under  his  hand  and  seal  and  cause 

the  same  to  be  filed  in within calendar  months  next  and  immediately 

after  the  date  of  these  our  letters  patent]  [and  also  if  the  said  instrument  in 
writino-  filed  as  aforesaid  does  not  particularly  describe  and  ascertain  the  nature 
of  the  said  invention  and  in  what  manner  the  same  is  to  be  performed]  and  also 
if  the  said  A.  B.  his  executors  administrators  or  assigns  shall  not  pay  or  cause 
to  be  paid  at  the  office  ©f  our  Commissioners  of  Patents  for  Inventions  the  sums 

following  that  is  to  say  the  sum  of pounds  on  or  before  the day 

of A.  D. and  the  stamp  duty  payable  in  respect  of  the  certificate  of  such 

payment  and  the  sum  of pounds  on  or  before  the day  of 

A.  D. and  the  stamp  duty  payable  in  respect  of  the  certificate  of  such  pay- 
ment (&)  And  also  if  the  said  A.  B.  his  executors  administrators  or  assigns 
shall  not  supply  or  cause  to  be  supplied  for  our  service  all  such  articles  of  the 
said  invention  as  he  or  they  shall  be  required  to  supply  by  the  officers  or  com- 
missioners administering  the  department  of  our  service  for  the  use  of  which  the 
same  shall  be  required  in  such  manner  at  such  times  and  at  and  upon  such 
reasonable  prices  and  terms  as  shall  be  settled  for  that  purpose  by  the  said 
officers  or  commissioners  requiring  the  same  that  then  and  in  any  of  the  said 
cases  these  our  letters  patent  and  all  liberties  and  advantages  whatsoever  hereby 
granted  shall  utterly  cease  determine  and  become  void  anything  hereinbefore 
contained  to  the  contrary  thereof  in  anywise  *notwithstandnig  r^^j^j-i 
Provided  that  nothing  herein  contained  shall  prevent  the  granting 
of  licenses  in  such  manner  and  for  such  consideration  as  they  may  by  law  be 
granted  And  lastly  we  do  by  these  presents  for  us  our  heirs  and  successors 

(b)  By  Stat.  16  &  17  Vict.  c.  5,  no  fees  are  now  payable,  but  stamp  duties  only.     See 
ante,  p.  236, 


417  APPENDIX. 

grant  unto  the  said  A.  B.  his  executors  administrators  and  assigns  that  these 
our  letters  patent  on  the  filing  thereof  shall  be  in  and  by  all  things  good  firm 
valid  sufficient  and  effectual  in  the  law  according  to  the  true  intent  and  meaning 
thereof  and  shall  be  taken  construed  and  adjudged  in  the  most  favorable  and 
beneficial  sense  for  the  best  advantage  of  the  said  A.  B.  his  executors  adminis- 
trators and  assigns  as  well  in  all  our  Courts  of  Record  as  elsewhere  and  by  all 
and  singular  the  officers  and  ministers  whatsoever  of  us  our  heirs  and  successors 
in  our  United  Kingdom  of  Great  Britain  and  Ireland  the  Channel  Islands  and 
the  Isle  of  Man  [Colonies  to  be  mentioned  if  any]  and  amongst  all  and 
every  the  subjects  of  us  our  heirs  and  successors  whatsoever  and  wheresoever  not- 
withstanding the  not  full  and  certain  describing  the  nature  or  quality  of  the  said 
invention  or  of  the  materials  thereunto  conducing  and  belonging     In  witness 

whereof  we  have  caused  these  our  letters  to  be  made  patent  this day  of 

A.  D. and  to  be  sealed  and  bear  date  as  of  the  said day  of 

A.  D. in  the year  of  our  reign. 


APPENDIX    (B). 

Eeferred  to,  pp.  263,  287,  289,  385,  386. 


Marriage  Settlement  of  a  Share  of  a  Testators  Resichiary  Personal  Estate  and 
of  Money  in  the  Funds  upon  the  usual  Trusts. 

This  Indenture  made  the day  of 1 860  Between  Charles  Catch- 
pole  of  King  Street  in  the  city  of  London  gentleman  of  the  first  part  Grace 
Gurney  of  Harley  Street  in  the  county  of  Middlesex  spinster  of  the  second  part 
and  Henry  Hunter  of  Brixton  in  the  county  of  Surrey  Esquire  John  James  of 
Lincoln's  Inn  in  the  county  of  Middlesex  Esquire  and  Leonard  Lambert  of 
Brighton  in  the  county  of  Sussex  Esquire  of  the  third  part  Whereas  a 
marriage  has  been  agreed  upon  and  is  intended  to  be  shortly  solemnized  between 
the  said  Charles  Catchpole  and  Grace  Gurney  And  whereas  under  and  by 
virtue  of  the  last  will  and  testament  of  John  Gurney  late  of  Harley  Street 
aforesaid  Esquire  deceased  which  said  will  bears  date  on  or  about  the  ninth  day 
of  January  1840  and  was  proved  in  the  Prerogative  Court  of  the  Archbishop 
of  Canterbury  (a)  on  or  about  the  twelfth  day  of  March  1840  the  said  Grace 
Gurney  is  now  entitled  to  one  equal  undivided  fourth  part  or  share  or  some 
other  part  or  share  of  the  residuary  personal  estate  of  the  said  testator  or  the 
stocks  funds  or  securities  in  or  upon  which  the  same  is  or  may  be  invested  And 
whereas  the  said  Grace  Gurney  is  possessed  of  the  sum  of  £5000  £3  per  cent. 

(a)  See  ante,  p.  333. 


APPENDIX.  418 

f 

consolidated  bank  annuities  which  said  sum  was  lately  standing  in  her  own 
name  in  the  books  of  the  governor  and  company  of  the  Bank  of  England  And 
WHEREAS  upon  the  treaty  for  the  said  intended  marriage  it  was  agreed  that 
the  said  Grrace  Grurney  should  assign  the  said  one  equal  undivided  fourth  part 
or  *share  or  other  part  or  share  to  which  she  is  entitled  as  aforesaid  of 
and  in  the  residuary  personal  estate  of  her  said  late  father  unto  the    ^  J 

said  Henry  Hunter  John  James  and  Leonard  Lambert  their  executors  adminis- 
trators and  assigns  upon  and  for  the  trusts  intents  and  purposes  hereinafter 
expressed  and  declared  of  and  concerning  the  same  i\.nd  it  was  also  agreed 
that  the  said  Grace  Gurney  should  transfer  the  said  sum  of  £5000  £3  per  cent, 
consolidated  bank  annuities  of  which  she  is  possessed  as  aforesaid  into  the 
names  of  the  said  Henry  Hunter  John  James  and  Leonard  Lambert  to  be  held 
by  them  upon  and  for  the  trusts  intents  and  purposes  hereinafter  expressed  and 
declared  of  and  concerning  the  same  And  whereas  the  said  sum  of  £5000 
£3  per  cent,  consolidated  bank  annuities  hath  been  accordingly  transferred  by 
the  said  Grace  Gurney  out  of  her  name  into  the  names  of  the  said  Henry 
Hunter  John  James  and  Leonard  Lambert  and  the  same  is  now  standing  in 
their  names  in  the  books  of  the  governor  and  company  of  the  Bank  of  England 
as  they  the  said  Henry  Hunter  John  James  and  Leonard  Lambert  do  hereby 
admit  and  acknowledge  Now  this  Indenture  witnessesh  that  in  pursuance 
of  the  said  agreement  in  this  behalf  and  in  consideration  of  the  said  intended 
marriage  she  the  said  Grace  Gurney  with  the  consent  and  approbation  of  the 
said  Charles  Catchpole  testified  by  his  being  a  party  to  and  executing  these 
presents  Hath  granted  bargained  sold  assigned  and  transferred  and  by  these 
presents  Doth  grant  bargain  sell  assign  and  transfer  unto  the  said  Henry 
Hunter  John  James  and  Leonard  Lambert  their  executors  administrators  and 
assigns  All  that  the  one  equal  undivided  fourth  part  or  share  or  other  part  or 
share  of  her  the  said  Grace  Gurney  under  the  hereinbefore  mentioned  will  of  her 
said  late  father  John  Gurney  of  and  in  the  residuary  personal  estate  of  her  said 
late  father  and  of  and  in  the  stocks  funds  and  securities  in  or  upon  which  the 
same  now  is  or  shall  or  may  at  any  time  or  times  hereafter  be  invested  and  of 
and  in  the  dividends  interest  and  annual  produce  thereof  And  all  the  right  title 
claim  and  demand  whatsoever  at  law  and  in  equity  of  her  the  said  Grace  Gurney 
in  and  to  the  said  one  equal  undivided  fourth  part  or  share  or  other  part  or 
share  hereby  assigned  To  have  hold  receive  and  take  the  said  *one  r^ioQi 
equal  undivided  fourth  part  or  share  or  other  part  or  share  intended  to  '- 
be  hereby  assigned  of  and  in  the  residuary  personal  estate  of  the  said  John 
Gurney  and  the  investments  and  income  thereof  unto  the  said  Henry  Hunter 
John  James  and  Leonard  Lambert  their  executors  administrators  and  assigns 
In  trust  for  the  said  Grace  Gurney. her  executors  administrators  and  assigns 
until  the  solemnization  of  the  said  intended  marriage  and  from  and  immediately 
after  the  solemnization  thereof  UroN  and  for  the  trusts  intents  and  purposes 
and  with  under  and  subject  to  the  powers  provisos  agreements  and  declarations 
hereinafter  expressed  and  declared  of  and  concerning  the  same     And  the  said 


420  APPENDIX. 

Charles  Catchpole  and  Grace  Gurney  do  and  each  of  them  doth  hereby  irrevocably 
nominate  and  appoint  the  said  Henry  Hunter  John  James  and  Leonard  Lambert 
and  the  survivors  and  survivor  of  them  his  executors  administrators  and  assigns 
to  be  the  true  and  lawful  attorneys  and  attorney  of  them  the  said  Charles  Catch- 
pole  and  Grace  Gurney  and  each  of  them(/>)  in  their  his  or  her  names  or  name 
to  ask  recover  and  receive  from  the  executors  of  the  will  of  the  said  John 
Gurney  and  all  and  every  persons  and  person  liable  to  pay  or  transfer  the  same 
the  said  one  equal  undivided  fourth  part  or  share  hereby  assigned  and  to  give 
effectual  discharges  for  the  same  and  on  non-payment  or  non-transfer  thereof  or 
of  any  part  thereof  to  commence  carry  on  and  prosecute  any  action  or  actions 
suit  or  suits  or  other  proceedings  whatsoever  for  obtaining  payment  or  /ransfer 
thereof  And  also  for  all  or  any  of  the  said  purposes  from  time  to  time  to 
substitute  or  appoint  any  attorney  or  attorneys  under  them  or  him  And 
generally  to  do  and  execute  all  such  other  matters  and  things  in  the  premises  as 
shall  be  necessary  they  the  said  Charles  Catchpole  and  Grace  Gurney  hereby 
agreeing  to  allow  and  confirm  whatsoever  the  said  Henry  Hunter  John  James 
and  Leonard  Lambert  or  the  survivors  or  survivors»of  them  his  executors  admin- 
istrators or  assigns  shall  lawfully  do  or  cause  to  be  done  in  the  premises  by 
virtue  hereof  And  it  is  hereby  agreed  and  declared  by  and  between  the  said 
parties  hereto  that  they  the  said  Henry  Hunter  John  James  and  Leonard  Lambert 
-  *their  executors  administrators  and  assigns  shall  stand  possessed  of  and 
L  -•    interested  in  the  said  sum  of  £5000  £3  per  cent,  consolidated  bank 

annuities  so  transferred  into  their  names  as  aforesaid  In  trust  for  the  said 
Grace  Gurney  her  executors  administrators  and  assigns  until  the  solemnization 
of  the  said  intended  marriage  And  from  and  immediately  after  the  solemniza- 
tion thereof  Upon  and  for  the  trusts  intents  and  purposes  and  with  under  and 
subject  to  the  powers  provisos  agreements  and  declarations  hereinafter  expressed 
and  contained  of  and  concerning  the  same  And  it  is  hereby  agreed  and 
declared  by  and  between  the  said  parties  hereto  that  from  and  after  the  solemni- 
zation of  the  said  intended  marriage  the  said  Henry  Hunter  John  James  and 
Leonard  Lambert  their  executors  administrators  and  assigns  shall  stand  possessed 
of  and  interested  in  the  said  one  equal  fourth  part  or  share  or  other  part  or  share 
hereinbefore  assigned  of  and  in  the  residuary  personal  estate  of  the  said  John 
Gurney  and  the  investments  thereof  and  the  said  sum  of  £5000  £3  per  cent, 
consolidated  bank  annuities  Upon  trust  that  the  said  trustees  or  the  trustees  or 
trustee  for  the  time  being  of  these  presents  do  and  shall  either  continue  the  same 
respectively  in  their  respective  actual  states  of  investment  or  do  and  shall  lay  out 
and  invest  the  same  in  any  of  the  parliamentary  stocks  or  public  funds  of  Great 
Britain  or  at  interest  upon  government  or  real  securities  in  England  or  Wales  but 
not  in  stock  of  the  Bank  of  England  or  Ireland  or  in  East  India  Stock  or  on 
real  securities  in  Ireland(c)  and  do  and  shall  from  time  to  time  alter  and  vary 

(6)  This  power  of  attorney  is  not  absolutely  necessary,  as  the  choses  in  action  which 
are  assigned  are  equitable  only  ;   see  ante,  p.  117 
(c)  See  ante,  pp.  282,  283 

a 


APPENDIX.  421 

the  said  stocks  funds  and  securities  for  or  into  others  of  a  like  nature  as  often 
as  the  said  trustees  or  trustee  shall  think  fit  Provided  that  every  such  invest- 
ment alteration  and  variation  be  made  with  the  consent  of  the  said  Charles 
Catchpole  and  Grace  Gurney  during  their  joint  lives  and  after  the  decease  of 
either  of  them  with  the  consent  of  the  survivor  of  them(rf)  and  after  the 
decease  of  such  survivor  at  the  discretion  of  the  said  trustees  or  trustee  for  the 
time  being  of  these  presents  And  it  is  hereby  agreed  and  declared  by  and 
between  the  said  parties  hereto  that  after  the  solemnization  of  the  said  intended 
marriage  the  said  trustees  or  *trustee  for  the  time  being  of  these 
presents  shall  stand  possessed  of  and  interested  in  the  said  share  of  '-  ""'-' 
the  residuary  personal  estate  of  the  said  John  Gurney  and  the  investments 
thereof  and  the  said  sum  of  £5000  £3  per  cent.  co^oUdated  bank  annuities 
and  the  stocks  funds  and  securities  in  or  upon  which  the  same  may  be  invested 
and  the  dividends  interest  and  annual  produce  thereof  Upon  and  for  the 
trusts  intents  and  purposes  and  under  and  subject  to  the  powers  provisos 
agreements  and  declarations  hereinafter  expressed  and  declared  of  and  concern- 
ing the  same  that  is  to  say  Upon  trust  that  they  the  said  trustees  or  trustee  for 
the  time  being  of  these  presents  do  and  shall  during  the  life  of  the  said  Grace 
Gurney  pay  the  interest  dividends  and  annual  produce  thereof  unto  such  person 
or  persons  as  the  said  Grace  Gurney  shall  from  time  to  time  notwithstanding 
her  said  intended  or  any  future  coverture  appoint  by  any  writing  under  her  hand 
but  not  by  any  mode  of  anticipation  and  in  default  of  such  appointment  into 
her  own  hands  for  her  sole  and  separate  use((^)  exclusive  of  the  said  Charles 
Catchpole  and  of  any  future  husband  but  so  that  she  shall  not  dispose  thereof 
in  any  mode  of  anticipation  And  the  receipts  in  writing  of  the  said  Grace 
Gurney  or  of  such  person  or  persons  as  she  shall  appoint  to  receive  the  said 
dividends  interest  and  annual  produce  in  manner  aforesaid  but  not  in  any  mode 
of  anticipation  shall  notwithstanding  her  said  intended  or  any  future  coverture 
be  effectual  discharges  for  the  same  And  from  and  immediately  alter  the 
decease  of  the  said  Grace  Gurney  Upon  trust  that  the  said  trustees  or  trustee 
for  the  time  being  of  these  presents  do  and  shall  pay  the  dividends  interest  and 
annual  produce  of  the  said  trust  moneys  stocks  funds  and  securities  unto  or 
permit  the  same  to  be  received  by  the  said  Charles  Catchpole  and  his  assigns 
for  and  during  the  term  of  his  natural  life  And  from  and  immediately  after 
the  decease  of  the  survivor  of  them  the  said  Charles  Catchpole  and  Grace 
Gurney  the  said  trustees  or  trustee  for  the  time  being  of  these  present  shall  stand 
and  be  possessed  of  and  interested  in  the  said  trust  moneys  stocks  funds  and  secu- 
rities and  the  dividends  interest  and  annual  produce  thereof  In  trust  for  all  and 
*every  or  such  one  or  more  exclusively  of  the  others  or  other  of  the  r^):  i.-^o-i 
children  or  child  of  the  said  intended  marriage  with  such  provision  '-  "  -^ 
for  their  respective  maintenance  and  if  more  than  one  in  such  shares  and  pro- 
portions and  subject  to  such  limit.itions  and  conditions  over  in  favor  of  any 

(d)  See  ante,  pp.  285,  286.  (c)  Sec  ante,  p.  384. 


423  APPENDIX. 

Others  or  other  of  the  said  children  and  in  such  nianner(/)  as  the  said  Charles 
Catohpole  and  Grace  Gurney  by  any  deed  or  deeds  instrument  or  instruments  in 
writing  with  or  without  power  of  revocation  and  new  appointment  to  be  by  them 
sealed  and  delivered  in  the  presence  of  and  to  be  attested  by  two  or  more  credi- 
ble witnesses  shall  jointly  direct  or  appoint  And  in  default  of  such  joint  direc- 
tion or  appointment  and  so  far  as  any  such  joint  direction  or  appointment  if 
incomplete  shall  not  extend  as  the  survivor  of  them  the  said  Charles  Catohpole 
and  Grace  Gurney  by  any  deed  or  deeds  instrument  or  instruments  in  writing 
with  or  without  power  of  revocation  and  new  appointment  to  be  by  him  or  her 
respectively  sealed  and  delivered  in  the  presence  of  and  to  be  attested  by  two  or 
more  credible  witnesses  or  by  his  or  her  last  will  or  any  codicil  or  testamentary 
writing  to  be  by  him  or  l^r  respectively  duly  executed  (and  as  to  the  said  Grace 
Gurney  notwithstanding  any  future  coverture)  shall  direct  or  appoint  And  in 
default  of  such  direction  or  appointment  and  so  far  as  any  such  direction  or  ap- 
pointment if  incomplete  shall  not  extend  In  trust  tor  all  and  every  the  children 
or  child  of  the  said  intended  marriage  who  being  a  son  or  sons  shall  attain  the 
age  of  twenty-one  years  or  being  a  daughter  or  daughters  shall  attain  that  age  or 
marry  under  that  age  with  the  consent  of  h.'r  or  their  parent  or  parents  guardian 
or  guardians  for  the  time  being  and  to  be  divided  between  or  amongst  the  said 
children  if  more  than  one  in  equal  shares  as  tenants  in  common  and  if  there  shall 
be  but  one  such  child  who  being  a  son  shall  live  to  attain  the  age  of  twenty-one 
years  or  being  a  daughter  shall  live  to  attain  that  age  or  marry  under  that  age 
with  such  consent  as  aforesaid  then  the  whole  shall  be  in  trust  for  that  one  or 
only  child  But  no  child  taking  any  part  of  the  said  trust  moneys  stocks  funds 
r^A9Al  ^^^^  securities  under  any  appointment  to  be  made  in  exercise  of  *auy  of 
L  '^  J  the  aforesaid  powers  shall  be  entitled  to  any  share  of  tlie  unappointed 
part  of  the  said  trust  moneys  stocks  funds  and  securities  without  bringing  his  or 
her  appointed  share  into  hotchpot  and  accounting  for  the  sanie  accordingly ( (7) 
And  if  there  shall  be  no  child  or  children  of  the  said  intended  marriage  who 
shall  become  entitled  to  the  said  trust  moneys  stocks  funds  and  securities  under 
the  trusts  hereinbefore  declared  then  the  said  trustees  or  trustee  for  the  time 
being  shall  stand  possessed  of  the  said  trust  moneys  stocks  funds  and  securities 
or  so  much  thereof  as  shall  not  have  been  disposed  of  under  the  powers  and 
authorities  herein  contained  and  the  dividends  interest  and  annual  produce 
thereof  (subject  nevertheless  to  the  trusts  hereinbefore  declared)  Upon  and  for 
the  trusts  intents  and  purposes  hereinafter  expressed  and  declared  of  and  con- 
cerning the  same  that  is  to  say  If  the  said  Charles  Catohpole  shall  depart  this 
life  in  the  lifetime  of  the  said  Grace  Gurney  In  trust  for  the  said  Grace  Gur- 
ney her  ex-,  cutors  administrators  and  assigns  for  her  own  benefit  But  if  the 
said  Grace  Gurney  shall  depart  this  life  in  the  lifetime  of  the  said  Charles  Catch- 
pole  then  after  the  decease  of  the  said  Charles  Catohpole  and  such  failure  of 
children  as  aforesaid  Upon,  and  for  such  trusts  intents  and  purposes  and  in  such 

(/)  See  ante,  pp.  271,  272.  (^)  See  ante,  p.  272. 


APPENDIX.  424 

manner  as  the  said  Grace  Gurney  by  her  last  will  or  any  codicil  or  testamentary 
writing  ^0  be  by  her  duly  executed  notwithstanding  her  said  intended  coverture 
shall  direct  or  appoint(/t)    And  in  default  of  such  direction  or  appointment  and 
so  far  as  any  such  direction  or  appointment  if  incomplete  shall  not  extend  In 
TRUST  for  the  person  or  persons  who  under  the  statutes  made  for  the  distribu- 
tion of  the  estates  of  intestates  would  at  the  decease  of  the  said  Grace  Gurney 
be  entitled  to  her  personal  estate  in  case  she  had  died  possessed  of  the  same  in- 
testate and  without  having  been  married  and  to  be  divided  between  or  amongst 
the  same  persons  if  more  than  one  in  the  shares  in  which  the  same  would  under 
the  same  statutes  be  divided  between  or  amongst  them  Provided  always  and 
it  is  hereby  agreed  and  declared  by  and  between  the  said  parties  hereto  that 
after  the  decease  of  the  said  Charles  Catchpole  and  Grace  Gurney  *and    p*^qp-i 
whilst  any  child  or  children  of  the  said  intended  marriage  being  a  son    '-     '^  -• 
or  sons  shall  be  under  the  age  of  twenty-one  years  or  being  a  daughter  or  daugh- 
ters shall  be  under  that  age  and  unmarried  the  said  trustees  or  trustee  for  the 
time  being  of  these  presents  do  and  shall  apply  the  whole  or  such  part  as  the  said 
trustees  or  trustee  for  the  time  being  shall  think  fit  of  the  dividends  interest  and 
annual  produce  of  the  expectant  or  presumptive  share  of  each  such  child  in  the 
said  trust  moneys  stocks  funds  and  securities  for  or  towards  his  or  her  mainte- 
nance and  education  or  otherwise  for  his  or  her  benefit  and  that  the  said  trustees 
or  trustee  for  the  time  being  may  either  themselves  or  himself  so  apply  the 
same  or  may  pay  the  same  to  the  guardian  or  guardians  of  such  child  for  the 
purpose  aforesaid  without  seeing  to  the  application  thereof  (t)     And  do  and 
shall  lay  out  and  invest  the  surplus  if  any  of  the  said  interest  dividends  and 
annual  produce  in  the  names  or  name  of  the  said  trustees  or  trustee  for  the  time 
being  in  any  of  the  stocks  funds  or  securities  hereinbefore  mentioned  to  be  li-om 
time  to  time  altered  and  varied  for  or  into  any  other  stocks  funds  and  securities 
of  a  like  nature  as  often  as  the  said  trustees  or  trustee  shall  think  fit  so  that  the 
same  may  accumulate  by  way  of  compound  interest  and  the  accumulations  to  be 
so  made  shall  be  added  to  the  fund  or  respective  funds  from  which  the  same 
shall  have  proceeded  and  be  subject  to  the  same  trusts  and  provisions  in  every 
respect  and  so  that  the  dividends  interest  and  annual  produce  of  each  such  ac- 
cumulated fund  may  be  subject  to  the  provision  hereinbefore  contained  for  the 
maintenance  and  education  at  any  subsequent  period  of  minority  of  the  child 
from  whose  expectant  or  presumptive  share  the  same  shall  have  proceeded  Pro- 
vided ALSO  and  it  is  hereby  agreed  and  declared  that  it  shall  be  lawful  for  the 
said  trustees  or  trustee  for  the  time  being  of  these  presents  during  the  joint 
lives  of  the  said  Charles  Catchpole  and  Grace  Gurney  with  their  consent  in 
writing  and  after  the  decease  of  either  of  them  with  the  consent  in  writing  of 
the  survivor  of  them  which  consent  shall  be  binding  whether  the  said  Grace 
Gurney  shall  be  covert  or  sole  and  after  the  decease  of  such  survivor  at  the  dis- 
cretion *of  the  said  trustees  or  trustee  for  the  time  being  to  raise  and    ^^.^^-. 
apply  a  sufficient  part  of  the  expectant  share  of  any  child  of  the  said    '- 

{h)  See  atiie,  p.  269.  (i)  See  ante,  pp.  278-281. 


426  APPENDIX. 

intended  marriage  in  the  said  trust  moneys  stocks  funds  and  securities  for  or 
towards  his  or  her  advancement  in  the  world  notwithstanding  he  or  ^le  shall 
not  then  have  attained  the  age  of  twenty-one  years  or  after  he  or  she  may  have 
attained  that  age  in  the  lifetime  of  the  said  Charles  Catchpole  and  Grace  Gur- 
ncy  or  the  survivor  of  them  Provided  always  and  it  is  hereby  agreed  and  de- 
clared by  and  between  the  said  parties  hereto  that  it  shall  be  lawful  for  the  said 
trustees  or  trustee  for  the  time  being  at  any  time  or  times  during  the  lives  or  life 
of  the  said  Charles  Catchpole  and  Grace  Gurney  or  the  survivor  of  them  with 
their  his  or  her  consent  and  approbation  in  writing  signed  with  their  his  or  her 
hands  or  hand  to  convert  into  money  the  whole  or  any  part  of  the  said  stocks 
funds  and  securities  and  to  lay  out  the  moneys  arising  thereby  in  the  purchase  of 
any  freehold  or  copyhold  estates  in  England  or  Wales  of  an  estate  of  inheritance 
in  fee  simple  in  possession  free  from  all  incumbrances  except  quit  rents  and 
copyhold  and  customary  dues  and  services(^)  to  be  conveyed  or  surrendered  to 
the  said  trustees  or  trustee  for  the  time  being  their  or  his  heirs  and  assigns 
Upon  trust  nevertheless  with  the  consent  and  approbation  of  the  said  Charles 
Catchpole  and  Grace  Gurney  or  the  survivor  of  them  to  be  signified  by  writing 
signed  with  their  his  or  her  hands  or  hand  during  the  lifetime  of  them  or  the 
survivor  of  them  and  after  the  decease  of  the  survivor  of  tliem  then  at  the  dis- 
cretion and  of  the  proper  authority  of  the  said  trustees  or  trustee  for  the  time 
being  of  these  presents  to  sell  and  dispose  of  the  said  estates  which  shall  have 
been  so  purchased  as  aforesaid  either  by  public  auction  or  private  contract  in 
one  lot  or  in  parcels  subject  to  such  special  conditions  of  sale  and  for  such  price 
or  prices  as  to  the  said  trustees  or  trustee  for  the  time  being  shall  seem  reason- 
able with  power  at  any  public  auction  of  the  said  premises  or  any  of  them 
to  buy  in  the  same  or  any  of  them  and  also  to  vary  or  rescind  any  contract 
for  the  sale  of  the  same  or  any  part  thereof  and  to  resell  the  same  in  manner 
r*/f  07n  *sft>J'6said  without  responsibility  for  any  loss  to  be  occasioned  thereby 
•-  "^  -^  and  to  convey  and  assure  the  said  premises  which  shall  be  sold  to  the 
purchaser  or  respective  purchasers  thereof  or  as  he  she  or  they  respectively  shall 
direct  And  upon  trust  to  apply  the  moneys  arising  from  such  sale  after  pay- 
ment of  the  costs  charges  and  expenses  attending  the  same  Upon  and  for  such 
and  the  same  trusts  intents  and  purposes  as  the  moneys  so  raised  and  laid  out  in 
the  purchase  of  such  estates  were  subject  to  before  such  purchase  was  made  or 
would  have  been  subject  to  if  the  same  had  not  been  laid  out  therein  And 
also  upon  trust  in  the  meantime  and  until  such  estates  shall  be  so  resold  to 
apply  the  rents  and  profits  thereof  in  such  manner  as  the  interest  dividends  and 
annual  produce  of  the  moneys  laid  out  in  the  purchase  thereof  would  have  been 
applicable  under  the  trusts  hereinbefore  declared  in  case  such  purchase  had  not 
been  made  It  being  hereby  agreed  and  declared  that  the  estates  to  be  pur- 
chased under  this  present  power  as  aforesaid  shall  when  so  purchased  be  con- 
sidered as  money  and  be  subject  to  such  and  the  same  trusts  in  all  respects  as 

{k)  See  ante,  p.  28G. 


APPENDIX.  427 

the  moucys  laid  out  in  the  purchase  thereof  were  subject  to  before  such  purchase 
was  made  or  would  have  been  subject  to  if  the  same  had  not  been  laid  out 
therein  Provided  always  and  it  is  hereby  agreed  and  declared  by  and  between 
the  said  parties  hereto  that  it  shall  be  lawful  for  the  trustees  or  trustee  for  the 
time  being  of  the  estates  so  to  be  purchased  by  virtue  of  such  power  as  aforesaid 
with  the  consent  and  approbation  of  the  said  Charles  Catchpole  and  Grace 
Grurney  or  the  survivor  of  them  testified  by  some  writing  under  their  his  or  her 
hands  or  hand  and  after  the  decease  of  such  survivor  then  at  the  discretion  and 
of  the  proper  authority  of  the  said  trustees  or  trustee  by  deed  at  any  time  or 
times  to  demise  and  lease  the  same  estates  or  any  of  them  or  any  part  thereof 
to  any  person  or  persons  whomsoever  for  any  term  of  years  not  exceeding 
twenty-one  years  to  take  efiect  in  possession  and  not  by  way  of  future  interest 
at  the  best  yearly  rent  that  can  be  had  or  gotten  for  the  same  and  without  any 
fine  or  foregift  for  the  making  thereof  and  upon  such  other  terms  and  conditions 
as  the  said  trustees  or  trustee  shall  think  fair  and  reasonable  Provided  always 
and  it  is  hereby  agreed  and  declared  by  and  between  *the  said  parties  ^^.^q-. 
hereto  that  it  shall  be  lawful  for  the  trustees  or  trustee  for  the  time  L  *"  J 
being  of  these  presents  with  the  consent  in  writing  of  the  said  Charles  Catch- 
pole  and  Grace  Gurney  during  their  joint  lives  and  after  the  decease  of  either 
of  them  with  the  consent  in  writing  of  the  survivor  of  them  and  after  the  de- 
cease of  such  survivor  at  the  discretion  of  the  said  trustees  or  trustee  to  settle 
and  ascertain  in  such  manner  as  they  or  he  shall  deem  expedient  the  amount  of 
any  moneys  properties  or  efiects  due  to  or  claimed  by  them  or  him  under  these 
presents  by  virtue  of  the  will  of  the  said  John  Gurney  deceased  and  also  to  pass 
and  allow  the  accounts  of  the  person  or  persons  paying  over  or  transferring  the 
same  moneys  properties  or  effects  or  any  part  thereof  and  to  accept  any  moneys 
properties  or  efi"ects  which  the  said  trustees  or  trustee  for  the  time  being  with 
such  consent  or  at  such  discretion  as  aforesaid  shall  deem  it  expedient  to  accept 
in  lieu  of  or  satisfaction  for  the  whole  of  the  said  premises  hereby  assigned  and 
to  give  releases  and  discharges  to  the  accounting  party  or  parties  for  the  same 
premises  or  any  part  thereof  as  fully  and  effectually  as  the  trustees  or  trustee  for 
the  time  being  of  these  presents  might  or  could  do  if  they  or  he  were  absolute 
and  beneficial  owners  or  owner  of  such  premises  And  if  any  disputes  or  diffi- 
culties shall  at  any  time  arise  in  relation  to  the  said  premises  hereby  assigned  or 
any  part  thereof  it  shall  be  lawful  for  the  trustees  or  trustee  for  the  time  being 
of  these  presents  if  they  or  he  shall  think  proper  with  such  consent  or  at  such 
discretion  as  aforesaid  to  refer  any  such  disputes  or  difficulties  to  arbitration  in 
the  usual  manner  or  otherwise  to  settle  and  adjust  the  same  in  such  manner 
in  all  respects  as  the  said  trustees  or  trustee  for  the  time  being  with  such  consent 
or  at  such  discretion  as  aforesaid  shall  think  proper  Provided  also  and  it  is 
hereby  futher  agreed  that  it  shall  be  lawful  for  the  trustees  or  trustee  for  the 
time  being  of  these  presents  in  their  or  his  discretion  to  postpone  or  forbear  the 
exercise  and  enforcement  of  all  or  any  of  the  powers  and  remedies  hereby  vested 
in  or  which  shall  or  may  be  exercisable  by  such  trustees  or  trustee  by  virtue  hereof 


428  APPENDIX. 

anything  herein  contained  or  any  rule  at  law  or  equity  to  the  contrary  notwithstand- 
ing Provided  also  and  it  is  hereby  agreed  and  declared  by  and  between  the  said 
r  •  1  OQi  psi^rties  hereto  *that  the  receipts  in  writing  of  the  trustees  or  trustee  for  the 
'-  "  -'  time  being  acting  in  the  execution  of  the  trusts  or  powers  of  these  presents 
for  any  moneys  payable  to  them  or  him  by  virtue  of  these  presents  shall  effectually 
discharge  the  person  or  persons  paying  the  same  from  all  responsibility  as  to  the 
misapplication  or  nonapplication  thereof  and  from  all  obligation  of  seeing  to  the 
application  thereof  (/)  And  also  that  it  shall  be  lawful  for  the  trustees  or 
trustee  for  the  time  being  of  these  presents  but  during  the  lives  of  the  said 
Charles  Catchpole  and  Grrace  Gurney  and  the  life  of  the  survivor  of  them  with 
their  his  or  her  consent  in  writing  to  accept  other  real  securities  for  any  part 
of  the  said  trust  funds  which  may  be  invested  in  real  securities  and  the  interest 
thereof  in  lieu  of  and  as  a  substitution  for  the  hereditaments  or  any  part  of  the 
hereditaments  comprised  in  any  such  security  And  also  to  discharge  from  any 
such  security  any  part  or  parts  of  the  hereditaments  therein  comprised  and  with- 
out which  the  said  trustees  or  trustee  shall  deem  the  existing  security  or  secu- 
rities sufficient  and  every  such  acceptance  of  a  new  security  and  every  release  of 
all  or  any  part  of  the  hereditaments  comprised  in  the  existing  securities  shall  be 
binding  on  all  persons  interested  in  the  said  trust  funds  and  the  interest  thereof 
and  the  persons  deriving  title  to  the  hereditaments  so  released  shall  not  be  obliged 
to  inquire  into  the  sufficiency  in  point  of  value  or  title  of  the  substituted  or 
retained  security  or  securities  Provided  also  and  it  is  hereby  fui-ther  agreed 
and  declared  by  and  between  the  said  parties  hereto  that  if  the  said  trustees 
hereinbefore  appointed  or  any  or  either  Of  them  or  any  future  trustee  or  trustees 
to  be  appointed  as  hereinafter  is  mentioned  shall  happen  to  die  or  shall  go  to  re- 
side beyond  the  seas  or  shall  be  desirous  of  being  discharged  or  shall  decline  or 
become  incapable  to  act  in  the  trusts  or  powers  herein  contained  before  the  same 
shall  be  fully  performed  or  otherwise  satisfied  then  and  in  every  such  case  it 
shall  be  lawful  for  the  said  Charles  Catchpole  and  Grace  Gurney  during  -their 
joint  lives  and  after  the  decease  of  either  of  them  for  the  survivor  of  them  and 
after  decease  of  such  survivor  for  the  surviving  or  continuing  trustees  or 
r*iQrn  *tri^istee  for  the  time  being  of  these  presents  or  the  acting  executors  or 
'-  -■    administrators  of  the  last  surviving  or  continuing  trustee  (and  for  this 

purpose  a  retiring  trustee  shall  if  willing  to  act  in  the  execution  of  this  power 
be  considered  a  continuing  trustee)  by  any  deed  or  deeds  instrument  or  instru- 
ments in  writing  to  be  by  them  him  or  her  sealed  and  delivered  in  the  presence 
of  and  to  be  attested  by  two  or  more  credible  witnesses  to  substitute  and  appoint 
any  other  person  or  persons  to  be  a  trustee  or  trustees  in  lieu  of  the  trustee  or 
trustees  so  dying  going  to  reside  beyond  the  seas  desiring  to  be  discharged 
declining  or  becoming  incapable  to  act  as  aforesaid  (m)  And  that  when  any 
new  trustee  or  trustees  shall  have  been  appointed  as  aforesaid  all  the  said  trust 
estates  moneys  and  premises  which  shall  be  then  vested  in  the  trustees  or  trustee 

[1)  See  ante,  p.  288.  (m)  See  ante,  p.  289. 


APPENDIX.  430 

for  the  time  being  of  these  presents  or  in  the  heirs  executors  or  administrators 
of  the  last  surviving  or  continuing  trustee  shall  with  all  convenient  speed  be 
conveyed  assigned  transferred  and  paid  so  as  effectually  to  vest  the  same  in  the 
surviving  or  continuing  trustees  or  trustee  and  such  new  or  other  trustee  or 
trustees  or  if  there  shall  be  no  surviving  or  continuing  trustee  then  in  such  new 
trustees  or  trustee  only  upon  the  same  trusts  as  are  hereinbefore  declared  con- 
cerning the  same  or  such  of  the  same  trusts  as  shall  be  subsisting  or  capable  of 
taking  effect  And  it  is  hereby  agreed  and  declared  that  every  such  new  trustee 
shall  in  all  things  act  and  assist  in  the  management  and  execution  of  the  trusts 
and  powers  to  which  he  shall  be  so  appointed  as  effectually  and  with  the  same 
powers  authorities  exemptions  and  discretion  as  if  he  had  been  originally  by 
these  presents  nominated  a  trustee  for  the  purposes  aforesaid  In  avitness 
whereof  the  said  parties  to  these  presents  have  hereunto  set  their  hands  and 
seals  the  day  and  year  first  above  written. 


INDEX. 


Ability,  representation  as  to,  83,  408. 

Absence  beyond  the  seas,  saving  of  disability  of,  402. 

Abstract  of  title,  410. 

Acceptance  of  goods,  what  is,  41. 

of  offer,  81. 
Acceptor  of  a  bill,  liability  of,  86. 
Accumulation,  restraint  on,  268. 

Acknowledgment,  remarks  on,  by  wife,  of  the  conveyance  of  her  real  estate,  393. 
Act  of  bankruptcy,  what  is,  50,  113,  123,  124,  134,  135,  136,  137,  138,  151. 
bond  fide  transactions  valid  notwithstanding,  151. 
— See  Bankruptcy. 
Action,  chose  in,  4-7,  63,  117,  306,  375,  377.— See  also  Chose  in  Action. 
Actions,  real,  personal  and  mixed,  3. 

ex  delicto  and  ex  contractu,  63,  64. 
personal,  3,  64,  65. 
for  dilapidations,  67. 
of  detinue,  3. 

of  trover  and  conversion,  24,  46,  49. 
of  replevin,  3. 
of  debt,  5,  70. 

of  debt  by  husband  for  arrears  of  wife's  rent,  376. 
limitation  of,  400-405. 
Ademption  of  specific  legacy,  344. 
Adjudication  of  bankruptcy,  140. 
Administration,  stamp  on  letters  of,  359. 
exemptions  from,  360. 
limited,  358. 

husband's  right  to,  of  his  wife's  effects,  376. 
Administrator  durante  minore  letate,  329,  358. 
who  appointed,  355. 
joint,  356. 

rights  and  powers  of,  357. 
his  year,  ib. 
durante  absentid,  358. 
pendente  lite,  ib. 
cum  testamento  annexo,  359. 
office  of,  not  transmissible,  360. 
de  bonis  non,  ib. 

not  bound  to  plead  the  Statute  of  Limitations,  405. 
Admiralty,  high  court  of,  61,  96. 
Admission  of  debt,  137. 

Advancement  to  children,  to  be  accounted  for  in  distribution.  301. 
form  of  power  of,  in  a  settlement,  425. 


434  INDEX. 

Affidavit  of  debt,  filing  an,  137. 
AFTER-acquired  property  of  bankrupt,  158. 
Agents,  398. 

Agreements  which  are  required  to  be  in  writing,  40,  42,  77. — See  Coktr.\cts. 
stamp  on,  78,  n. 
by  letter,  81. 

bonds  for  performance  of,  109. 
Alien,  46. 

may  be  bankrupt,  133. 
Alienation  of  choses  in  possession,  34,  37. 
void,  46. 

involuntary,  50,  118. 

of  choses  in  action,  117,  118,  199,  372,  380. 
growth  of  right  of  testamentary,  321. — See  Assignment. 
Alimony,  390. 

Allowance  of  bankrupt,  149. 
Alteration  of  a  deed,  88. 
Animals  ferx  nafurse,  19. 
Annuities,  bank. — See  Stock  in  the  Fcnds. 
Annuity,  apportionment  of,  2G3. 

apportionable  if  given  for  maintenance,  2G5. 
legacy  duty  on,  344. 
warrant  of  attorney  to  secure,  100. 
personal,  198. 
Anticipation,  restraint  on,  385. 
Appointment  of  portions,  271. 

illusory,  ib.  • 

exclusive,  ib. 
voluntary,  269. 

none  to  executors  or  administrators  of  deceased  objects,  272. 
amongst  a  class,  273. 
to  issue  of  a  child,  when  good,  274. 
fraudulent  by  a  father,  275. 
creating  a  perpetuity,  275. 
of  new  trustees,  289,  291. 
by  wife,  in  favor  of  her  husband,  387. 
powers  of,  271,  273,  274,  337. 
given  to  wife,  386. 
form  of  power  of,  amongst  children,  423. 
|form  of  power  of,  by  wife,  424. 
Apportionment  of  income,  263. 
Arbitration,  183. 

in  bankruptcy,  144. 

jurisdiction  of  the  Courts  in  matters  referred  to,  183. 
act  for  determining  differences  by,  185. 
every  submission  may  be  made  a  rule  of  court,  186. 
revocation  of  submission  to,  ib. 
death  of  parties,  188. 
Arbitrator  may  state  special  case,  192. 

on  failure  of  parties,  judge  may  appoint,  187,  194. 
death  of,  188. 
appointment  of,  ib. 
two  may  appoint  umpire,  194. 
Arrange-MENTS  by  deed  between  a  debtor  and  his  creditors,  121,  123,  124,  144,  145. 
regulations  as  to,  164. 

under  control  of  court  of  bankruptcy,  125,  126,  128. 
Arrears  of  rent,  105. 

of  rent,  limitation  of  actions  for,  403. 

action  by  husband  for,  of  rent  of  wife's  estate,  376. 

of  interest  on  bond,  108. 

of  interest,  limitation  of  actions  for,  403. 

of  dower,  402. 


INDEX.  435 


Arrest  on  mesne  process,  104. 
Articles  of  association,  223. 

quie  ipso  usu  consumuntur,  262. 
AssEKT  of  executor,  328. 

Assets,  executor  not  liable  beyond  amount  of,  342. 
Assignees  of  bankrupt,  53,  141. 
title  of,  150. 
official,  141. 
of  insolvent,  167. 
Assignment  of  choses  in  possession,  34,  35,  36. 

of  choses  in  action,  IIT,  118,  198,  380. 
notice  of,  118,  407. 
of  breaches,  109. 

of  policies  of  life  insurance,  178,  409. 
of  marine  policies,  181. 
of  letters  patent,  244. 
of  copyright,  249. 
in  trust  for  creditors,  123,  124,  135. 
of  wife's  reversionary  choses  in  action,  380. 
inquiry  as  to  prior,  of  chose  in  action,  408. 
a  person  may  assign  to  himself,  410. 
of  choses  in  action,  form  of  an,  419 
AssociATiox,  memorandum  of,  222,  223. 

articles  of,  223. 
Assumpsit,  72. 
Attorney,  warrant  of,  98. 

execution  and  attestation  of  warrant  of,  100. 
warrant  of,  formerly  executed  by  insolvent  debtor,  170. 
power  of,  on  assigning  a  legal  chose  in  action,  117. 
power  of,  construed  strictly,  398. 
form  of  a  power  of,  420. 

not  liable  as  a  trader  to  the  bankrupt  laws,  133. 
Auction,  sale  by,  43. 
Award,  189. 

time  of  making,  ib. 

enlargement  of  time  of  making,  ib. 

attendance  of  parties,  190. 

mode  of  proceeding,  191. 

must  be  certain  and  final,  ib. 

setting  aside,  193. 

eflfect  of,  196. 

performance  of,  ib. 

for  payment  of  money  creates  a  debt,  ib. 

under  seal  not  a  deed,  197. 

stamp  on.  ib. 

limitation  of  actions  on,  404. 

B. 

Bailee,  possession  of.  27,  37,  41. 

Bailment,  26. 

Bank  annuities.     See  Stock  in  the  Funds. 

notes,  title  to,  395. 
Banker's  protection  as  to  presented  draft,  85. 
Banking  companies,  214. 

act  for  incorporation  of,  217. 
sale  of  shares,  230. 
Bankruptcy  of  joint  stock  companies,  217. 
of  a  trading  partnership,  313. 
of  joint  creditors,  306. 

registration  of  deed  of  composition,  123,  124. 
fiat,  139. 
goods  in  bankrupt's  possession,  order  or  disposition,  o4. 

34 


436  INDEX. 

Bankruptcy,  choses  in  action  in  bankrupt's  possession,  order  and  disposition,  152,  408. 
former  revival  of  debt  barred  by,  76. 
court  of,  96,  139,  140. 
assignees,  141. 

does  not  determine  a  submission  to  arbitration,  188. 
voluntary  settlement  void  in  event  of,  153,  154,  297. 

preference,  168. 
Act,  1869.     54,  132. 
who  may  be  bankrupt,  132. 

act  of  bankruptcy,  50,  113,  123,  124,  134,  135,  136,  137,  138,  151. 
petition  for  adjudication,  139. 
adjudication,  140,  150. 

advertisement  of  order  of,  140. 
trustee,  141,  159. 
appointment  of,  142. 
how  trustee  sues  for  debt,  120,  306. 
committee  of  inspection,  142,  144. 
exercise  of  powers  by  trustee,  142,  270. 
management  of  property  by  bankrupt,  144. 
powers  of  trustee  with  sanction  of  committee,  ib. 

to  accept  composition  or  general  scheme  of  arrange- 
ment, 145. 
trustee,  if  a  solicitor,  may  be  paid  for  services,  ib. 
proceeds  of  sale  and  seizure  of  goods,  ib. 
proof  of  debts,  146,  148,  149,  162. 
what  are  considered  debts,  146. 
estimate  of  contingent  liabilities,  147. 
definition  of  "  liability,"  ib. 

power  of  landlord  to  distrain  for  one  year's  rent,  148. 
proof  in  case  of  rent,  ib. 
interest  on  debts,  ib. 

proof  in  respect  of  distinct  contracts,  149. 
allowance  to  bankrupt,  ib. 
set-off,  ib. 

secured  creditor,  provision  as  to,  138,  150. 

title  of  trustee  relates  back  to  time  of  act  of  bankruptcy,  53,  151,  159,  163. 
protection  of  certain  transactions  with  bankrupt,  151,  152. 
voluntary  settlements,  avoidance  of,  153. 
covenant  for  future  settlement,  avoidance  of,  154, 
fraudulent  preferences,  avoidance  of,  ib. 
debts  paid  rateably  in,  ib. 
bankrupt  entitled  to  surplus,  155. 
certificate,  156. 

order  of  discharge,  135,  156,  169,  308. 
effect  of,  157,  170. 
exception  of  joint  debtors,  158. 
uncertificated  bankrupt,  rights  and  status  of,  158,  159. 
evidence  of  proceedings  in,  141,  160. 

gazette,  141. 
privilege  of  parliament  not  to  prevent  adjudication,  160. 
vacating  seat  in  House  of  Commons,  ib. 
liquidation  by  arrangement,  regulations  as  to,  161. 
bankruptcy  of  non-traders,  166. 

1  &  2  Vict.  c.  110.     lb. 

5  &  6  Vict.  c.  116.     170. 

24  &  25  Vict.  c.  134;  32  &  33  Vict.  c.  71.     172,  173. 

pauper  and  lunatic  prisoners,  172. 

half-pay,  &c.,  ib. 

pay  of  officers,  173. 

sequestration  of  ecclesiastical  benefice,  168,  172,  173. 

salary,  174. 
Barnard's  Act,  now  repealed,  203,  230. 


INDEX.  437 

Bastard,  gift  by  will  to,  349,  350. 
Benefice,  charge  by  clergymen  on,  void,  92. 

right  of  nomination  to,  does  not  pass  to  trustee  in  bankruptcy,  270. 
sequestration  of,  in  bankruptcy,  168,  172,  173. 
Bequest  of  stock  in  the  funds,  207. 
executory,  260. 

general,  operates  as  an  exercise  of  a  general  power,  270. 
to  charities,  347. 

to  illegitimate  children,  349,  350. 
to  joint  tenants,  351. 
to  tenants  in  common,  ib. 
to  a  class,  ib. 
Bills  of  exchange,  84,  110,  118,  130. 

what,  prohibited,  84. 
endorsement  of,  85,  86. 
liability  of  drawer  and  acceptor,  ib. 
of  endorser,  86. 
banker's  protection,  85. 
protest  of,  86. 

consideration  presumed,  87. 

have  no  preference  over  other  simple  contract  debts,  110. 
always  carry  interest,  113. 
assignment  of,  118. 
title  to,  395. 
of  lading,  37,  62. 
of  sale,  registration  of,  49. 

renewal  of  registration  of,  50. 
Bona  notabilia,  333,  337. 
Bond,  107. 

to  induce  cohabitation,  void,  89. 
for  past  cohabitation,  good,  ib. 
single,  107. 
with  condition,  ib. 
stamp  on,  108,  n. 
joint,  302,  304,  308. 
joint  and  several,  304. 
for  performance  of  agreements,  109. 
interest  of  money  secured  by,  107. 
limitation  of  actions  on,  402. 
voluntary,  110. 
Bonus,  263. 
Bottomry,  181. 

Breaches,  assignment  of,  109. 
British  possessions  abroad,  copyright  in,  250. 

ships,  55,  56. 
Brothers,  right  of,  under  Statute  of  Distribution,  361. 
Building  societies,  232. 

mortgages  to,  233. 

0. 

Capias  ad  satisfaciendum,  writ  of,  102,  136. 
Casts,  copyright  in,  252. 
Certificate  of  ship's  registry,  57. 

bankrupt's,  156. 

of  mortgage  and  sale  of  ships,  60. 

of  shares  or  stock,  224. 
Chancery,  Court  of,  investments  of,  200,  201. 

order  of,  restraining  transfer,  406. 
Character,  representations  as  to,  83. 
Charities,  bequest  to,  347. 
Charter  party,  61. 


438  INDEX. 

Charter,  companies  incorporated  bv,  209. 
Chattels  •whicli  descend  to  the  heir,  9. 
personal,  2. 

of  wife  belong  to  her  husband,  373. 
real,  1. 

vegetable,  16. 

sale  of,  in  market  overt,  396.  I 

Children,  appointments  to,  2*71,  272,  273. 
younger,  273. 
in  ventre,  274,  276, 
vesting  of  portions  of,  277. 
maintenance  of,  278,  279,  391. 

form  of  power  of  maintenance  of,  in  a  settlement,  424. 
covenant  to  settle  property  on,  295,  296. 
gifts  to  illegitimate,  349. 
gifts  to,  343,  351. 

shares  of,  under  Statutes  of  Distribution,  361. 
custody  of  infant,  388,  391. 
order  to  settle  property  on,  391. 
form  of  powers  of  appointment  amongst,  423. 
form  of  trusts  for,  ib. 
Chose  in  action,  4,  5,  6,  7,  63,  306,  375,  377. 
assignment  of  legal,  117. 
assignment  of  equitable,  ib. 
right  of  husband  to  wife's  legal,  375. 
right  of  husband  to  wife's  equitable,  377. 
Statutes  of  Limitation  as  to,  400. 
notice  of  assignment  of,  407. 
in  possession,  4,  5,  9. 

alienation  of,  34,  37,  49. 
title  to,  396. 

Statutes  of  Limitation  as  to,  400. 
Civil  law,  subjection  of  the  law  of  property  to,  1. 

age  at  which  a  will  may  be  made  by  the,  322. 
degrees  of  kindred  traced  according  to  the,  362. 
rules  of  the,  as  to  restraint  of  marriage,  369. 
Civil  service,  probate  of  will  in,  338. 
Class,  a^ipointment  amongst  a,  273. 

bequest  to  a,  351. 
('lapses  Consolidation  Acts,  210,  211. 
Clergyman,  insolvent,  168. 

bankrupt,  172,  173. 

action  for  dilapidations,  68,  69.  , 

waste  by,  68. 
(]0AT  armor,  13. 
Co-debtor,  payment  by,  311. 
Cognovit,  98. 

execution  and  attestation  of,  100. 
to  be  filed  within  twenty-one  days,  101. 
Cohabitation,  bond4o  induce,  void,  89. 

bond  for  past,  good,  ib. 
Colonial  shipping,  55,  n. 
Colonies,  patent  for,  243. 

copyright  in,  250. 
Commission  of  bankruptcy,  139. 
(Committee  of  inspection  in  bankruptcy,  142,  144,  165. 

of  lunatic  entitled  to  stock,  204. 
(committeemen,  liability  of  provisional,  320. 

Common  Law  Procedure  Acts,  1854  and  1860.    119.— And  see  Statutes. 
Companies  Clauses  Acts,  210,  211. 

joint  stock,  209. — See  Joint  Stock  Companies. 
Comparison  of  title  to  real  and  personal  estate,  411. 


INDEX.  439 

Composition  with  creditors,  121,  124,  126,  144,  145. 

regulations  as  to,  128. 
Consent  to  change  of  investments,  285. 

forfeiture  on  marriage  without,  370. 
Consideration  necessary  to  a  contract,  73. 
executed,  ib. 
illegal,  ib. 
valuable,  74,  75. 

legacy  for,  345. 
good,  74. 

need  not  always  be  in  writing  to  form  a  written  contract,  79. 
why  presumed  to  a  note,  87. 
Consols,  200. — See  Stock  in  the  Funds. 
Contingent  liabilities,  proof  of,  in  bankruptcy,  147. 

remainders,  none  in  personal  estate,  267. 
Contracts,  70. 

by  deed,  87. 

when  writing  required  to,  38,  40,  42,  76,  77,  78,  79,  80. 
definition  of,  72. 
parol,  ib. 
special,  ib. 

valuable  consideration  necessary  to,  75. 
with  unlawful  object,  89. 

where  some  objects  lawful  and  others  unlawful,  90.  and  90,  n. 
with  lawful  objects,  94. 
by  way  of  gaming,  void,  93. 
for  restraint  of  trade,  91. 
usurious,  93. 
for  sale  of  goods,  38. 
contributories,  228. 
Conversion,  23,  46,  49. 

of  money  into  land  or  land  into  money,  286. 
Conveyance. — See  Alienation. 
Conveyancer,  certificated,  has  no  general  lien,  31. 
Convicts,  47. 

Copyholds  estates,  limitation  of  actions  for  fines  for,  404. 
Copyright,  245. 

in  encyclopaedias,  reviews,  &c.,  247. 
in  dramatic  and  musical  compositions,  248, 
foreigner  entitled  to,  ib. 
registry  of  proprietors,  ib. 
assignment  of,  249. 
personal  property,  ib. 
foreign  reprints  of  books,  ib, 
in  prints,  maps,  &c.,  251. 
in  sculptures,  252. 

paintings,  drawings  and  photographs,  ib. 
international,  253. 
newspapers,- 255. 
in  designs,  ib. 
Corporations,  209. 
Costs  of  writ  of  mandamus,  64. 

of  trustees,  292. 
Co-sureties,  115. 

County  Courts,  6,  n.,  79.  ' 

registry  of  judgments  in,  105. 
bankruptcy  jurisdiction,  140. 
winding-up  in,  228. 
trustee  jurisdiction,  295. 
probate  jurisdiction  of,  335. 
Court  for  Divorce  and  Matrimonial  Causes,  389. 

dissolution  of  marriage,  389,  391. 


440  INDEX. 

Court  for  Divorce  and  protection  of  wife  deserted  by  husband,  389. 
alimony,  390. 
judicial  separation,  ib. 
•wife  a  feme  sole,  ib. 

custody,  maintenance,  &c.  of  children,  388,  391. 
settlement  on  judicial  separation,  391. 
Courts  of  Record,  96. 
Covenant,  106 

to  insure  against  fire,  179,  180. 
stamps  on,  108,  n. 
voluntary  covenants,  110. 
for  settlement  of  wife's  future  property,  295. 
to  settle  husband's  property,  296. 
joint,  304,  308. 
joint  and  several,  304,  310. 
not  to  sue  one  joint  and  several  debtor,  311. 
for  title,  399,  410. 
Creditors,  gifts  for  defrauding,  48,  297. 
remedies  of  judgment,  102. 
composition  with,   121,  123,  124,  126,  144,  145. 
assignment  in  trust  for,  120,  123. 
petitioning  on  bankruptcy,  139. 
proof  by  secured,  in  bankruptcy,  150. 
assignees  of,  in  bankruptcy,  141. 
interest  of,  in  life  of  debtor,  176. 
voluntary  settlement  void  as  against,  153,  154,  297. 
trust  for  payment  of,  when  revocable,  299. 
may  by  custom  take  out  administration,  356. 
Statutes  of  Limitation  not  affected  by  death  of,  404. 
Crops,  17. 
Crown  debts,  97,  110. 

in  bankruptcy,  155,  157. 
jewels,  13. 

right  of,  to  intestate's  estates  if  no  next  of  kin,  364. 
Customs  of  London  and  York,  321,  333,  364. 
of  Wales,  321,  364. 
of  trades,  399. 

D. 

Damages,  actions  which  sound  in,  70. 
liquidated,  71. 

limitation  of  actions  for,  404. 
Death,  actions  by  executors  in  case  of,  65,  QQ. 

of  creditor,  effect  of,  404. 

of  debtor,  effect  of,  ib. 
De  bonis  non,  administration,  360. 
Debt,  action  of,  5. 

by  husband  for  arrears  of  wife's  rents,  376. 
Debts,  how  assignable,  117. 

barred  by  bankruptcy,  76. 

barred  by  Statute  of  Limitations,  revival  of,  ib. 

incurred  during  infancy,  77,  83. 

involuntary  alienation  of,  118. 

of  record,  96,  105, 

crown,  97,  110,  155,  157. 

judgment,  97,  101,  102,  110,  155,  159. 

abolition  of  imprisonment  for  debt,  103. 

the  Debtors' Act,  1869,  provisions  of,  ib. 

execution  for  sums  over  50Z.,  51. 

charge  on  stock  of  judgment,  206,  233. 

specialty,  97,  105,  110. 

abolition  of  priority  of  specialty  debts,  97,  106,  109,  113. 


I 


INDEX.  441 


Debts,  simple  contracts,  91,  110,  114. 
interest  on,  113. 
interest  on,  in  bankruptcy,  148. 
when  taken  in  execution,  118. 
payment  of,  120,  339. 
appropriation  of  payments,  120. 
filing  an  affidavit  of  debt,  137. 
admission  of,  ib. 

proof  of,  in  bankruptcy,  146,  148,  149,  162, 
set-off  of  mutual,  in  bankruptcy,  149. 
all  debts  in  bankruptcy,  paid  rateably,  154. 
joint  and  several,  of  bankrupt  trading  partnership,  313. 
voluntary,  when  exempt  from  probate  duty,  339. 
payment  of,  by  executor,  ib. 
power  of  executor  to  compound,  340. 
satisfaction  of,  by  legacies,  346. 
payment  of,  by  administrator,  357. 
husband's  liability  to  wife's,  382. 
covenant  to  indemnify  husband  against  wife's,  387. 
limitation  of  actions  for,  400-405. 
charge  of  real  estate  for  payment  of,  405. 
notice  to  debtor  on  assignment  of,  118,  407. 
Debtor,  notice  to,  on  assigning  the  debt,  118,  407. 
release  of,  126. 

unreasonable  stipulations,  127. 
reasonable  stipulations,  ib. 
bankruptcy  of. — See  Bankruptcy. 
insolvent. — See  Insolvent  Debtors. 
appointment  of  executor,  330. 
effect  of  death  of,  404. 
joint,  in  bankruptcy,  158. 
joint,  beyond  seas,  309. 
and  creditor,  defects  in  the  law  of,  110 
Debtors'  Act,  1869,  provisions  and  exceptions,  103. 
Decease  of  person  giving  power  of  attorney,  398. 
Declaration  of  insolvency,  135. 
Decree  of  a  court  of  equity,  102. 
Deed,  title  deeds  pass  by  conveyance  of  the  lands,  9. 

tenant  for  life  entitled  to  a  possession  of  the  deeds,  11. 
alienation  by,  37. 
contracts  by,  87. 
alteration  or  rasure  of  a,  88. 
immaterial  alterations,  88,  n. 
solicitor's  lien  on,  30. 
boxes,  13. 

of  arrangement,  124. 
stamp  duty  on,  124,  126. 
Deer,  19,  20. 

Defeazance  to  warrant  of  attorney,  99. 
Degrees  of  kindred,  how  traced,  362. 
Delivery,  alienation  of  personal  chattels  by,  35. 
constructive,  37,  42. 
order,  37,  395. 
Demonstrative  legacy,  344. 
Denizen  may  be  bankrupt,  133. 
Descent,  remarks  on  law  of,  365. 

to  distant  heirs  and  kindred,  _367. 
Designs  of  articles  of  manufacture,  copyright  in,  255. 
Detinue,  action  of,  3. 

limitation  of  action  of,  400. 

Dilapidations,  67,  68,  69,  113. 

Directors  of  joint  stock  companies,  powers  of,  319. 


442  INDEX. 

Directors  of  joint  stock  companies,  notice  to,  319. 

Disabilities,  savings  of,  400,  402,  403. 

Disclaimer  of  title  or  specification  of  invention,  241. 

DiSHO.MOR  of  bill  or  note,  notice  of,  86. 

Dissolution  of  marriage,  389,  391. 

Distant  heirs  and  kindred,  remarks  on  descent  to,  367. 

Distress  for  rent,  33. 

by  husband  for  arrears  of  wife's  rent,  377. 
Distribution,  Statutes  of,  353,  360. 

remarks  on  the  law,  365. 
Distringas,  409. 

on  stock,  205. 
Dividends,  apportionment  of,  263. 

unclaimed,  of  stock  in  the  funds,  406. 
Divorce,  Court  for,  389. 
Dock  warrants,  37. 
Domicile,  325,  326. 
Donation  mortis  causa,  327. 
Dormant  partner,  liability  of,  312,  314. 
Dower,  legacy  in  lieu  of,  345. 

limitation  of  actions  for  arrears  of,  402. 
Dramatic  pieces,  copyright  in,  248. 
Drawee  of  a  bill,  84. 
Drawer  of  a  bill,  ib. 

liability  of,  86. 
Drawings,  copyright  in,  252. 
Durante  absentia,  administrator,  358. 

minore  letate,  administrator,  329,  358. 
Dwellings  Act,  Laborers'  1855.     233. 

E. 

East  India  Stock,  what  is,  284. 

government  notes,  336. 
Ecclesiastical  benefice,  sequestration  of,  168,  172,  173. 
Education  of  children,  provisions  for,  278,  279,  391. 

form  of  power  of,  in  a  settlement,  424. 
Ejectment,  by  one  executor,  330,  n. 
Election  that  lands  should  not  be  sold,  287. 
Elegit,  writ  of,  51. 
Emblements,  17. 

EncyloPvEDIAS,  copyright  in,  247. 
Engravings,  copyright  in,  251. 
Equitable  chose  in  action,  6,  377. 
Equity,  decree  of  Court  of,  102. 
life  interest  in,  261. 

considers  as  done  what  is  agreed  to  be  done,  287. 
of  wife  to  a  settlement,  377. 
Erasure,  88. 

Escape,  limitation  of  action  for,  404. 
Estates,  none  in  personal  property,  7,  259. 
Evidence  of  proceedings  in  bankruptcy,  141,  160. 

required  on  probate,  334. 
Exchequer  bills,  282,  284. 
Exclusive  appointment,  271. 
Execution  on  a  judgment,  50. 

in  case  of  bankruptcy,  171. 

sale  of  goods,  how  affected  by,  396. 
Executor,  actions  by,  for  injury  to  estate  of  deceased,  65. 

actions  against,  for  wrong  done  by  deceased,  67. 

liability  of,  carrying  on  trade,  315. 

appointment  of,  328. 


INDEX.  443 

Executor,  assent  of,  328 

of  executor,  329. 
appointment  of  debtor,  330. 
survivorship  of  office  of,  ib. 

renunciation  by  one  in  the  lifetime  of  another,  ib. 
de  son  tort,  331. 
acts  of,  before  probate,  332. 
power  of,  339,  340. 
purchase  from,  339. 
accounts,  340. 
his  year,  ib. 
liability  of,  341. 

his  former  right  to  the  residue,  352. 
now  trustee  for  the  next  of  kin,  ib. 
Executors,  any  one  may  perform  acts  of  administration,  330. 

all  must  join  in  bringing  actions,  ib. 

as  to  ejectment,  330,  n. 

administrators  and  assigns,  use  of  the  words  as  words  of  limitation,  266. 

of  objects  of  a  power  cannnot  take  under  an  appointment,  272. 

protection  to,  341. 

not  bound  to  plead  the  Statute  of  Limitations,  405. 
Executory  bequests,  260. 

interests  in  personal  estate,  268. 
Executrix,  married  woman,  329. 

F. 

Factors,  398. 
Farm  buildings,  15. 

Father,  appointments  by,  must  not  be  for  his  own  benefit,  274. 
bound  to  maintain  his  children,  280. 
right  of,  under  Statute  of  Distributions,  361. 
Felony,  forfeiture  on  conviction  of,  47. 
Feme  covert,  369. — See  Married  Woman,  and  Wife. 
Ferse  naturse,  animals,  19. 
Fiat  in  bankruptcy,  139. — See  Bankruptcy. 
Fieri  facias,  writ  of,  51, 

securities  which  can  be  taken  under,  119. 
limitation  of  action  for  money  levied  under,  404. 
Fines  for  copyhold  estates,  limitations  of  actions  for,  ib. 
Fire  insurance,  179,  180. 
Fish,  19. 
Fixtures,  13,  50. 

trade,  14. 
agricultural,  15. 
when  demised,  16. 
Foreign  judgment,  102. 

inventions,  239. 
Forfeiture  of  goods,  47. 

on  marriage  without  consent,  370. 
for  non-insurance,  relief  against,  180. 
France,  convention  with,  as  to  copyright,  254. 

Fraud  on  a  power,  275.  " 

Frauds,  Statute  of.— See  Statute  29  Car.  II.  c.  3. 
Fraudulent  conveyance,  an  act  of  bankruptcy,  135. 
debtors,  punishment  of,  104. 
preference,  154. 
Freehold  land  societies,  232. 
Freight,  30,  62. 
Friendly  societies,  230. 
Fruit,  18. 

Funds,  the. — See  Stock  in  the  Funds. 
Future  property,  covenants  to  settle,  154,  295,  296. 


444  INDEX. 

G. 

Game,  19,  20,  21. 
Gaming,  93. 
Garnishee,  119. 

Gazette  evidence  of  bankruptcy,  141. 
General  lien,  30. 
ship,  62. 
legacy,  345. 
Gift  and  delivery,  35. 

for  defrauding  creditors,  48. 
of  personal  estate,  259,  261,  262,  265. 
to  children,  343,  351. 
to  illegitimate  children,  349,  350. 
lapse  of,  350. 

for  "sole  use"  of  wife,  384. 
Goods,  property  in,  23,  51. 

constructive  delivery  of,  37. 
sale  of,  38-45,  82,  396. 
what  is  an  acceptance  of,  41. 
forfeiture  of,  47. 
mortgage  of,  48. 
gift  of,  for  life,  in  law,  259. 

in  equity,  261,  262. 
stolen,  396. 

limitations  of  actions  for,  400. 
Goodwill,  257,  258. 
Government  securities,  what  are,  281. 
Grant  of  goods,  34. 
Guardians,  effect  of  concurrence  of,  in  settlements,  371. 


H. 

Half  blood,  claim  in  distribution  equally  with  the  whole,  362,  364. 

Hawks,  20. 

Heir  looms,  12,  13. 

Heir,  specialty  debts  in  which  he  is  bound,  105.  ^ 

Heirs,  word  inapplicable  to  personal  estate,  265. 

remarks  on  descent  to  distant,  367. 
Hire  of  goods,  27. 
Holder  of  a  bill  or  note,  85. 
Horses,  sale  of  stolen,  397. 
Hotchpot,  clause  of,  in  settlements,  272. 

advancements  to  be  brought  into,  on  intestacy,  361. 

form  of  clause  of,  in  a  settlement,  423. 
Hounds,  20. 
Husband,  covenant  to  settle  his  property,  296. 

no  duty  on  legacy  to,  342. 

ancient  rights  of,  372. 

right  to  wife's  chattels  personal,  373. 

gifts  by,  to  wife  of  jewels  and  trinkets,  374. 

his  right  to  wife's  legal  choses  in  action,  375. 
0  equitable  choses  in  action,  377. 

effect  of  his  assignment,  379. 

his  assignment  of  his  wife's  reversionary  choses  in  action,  380. 

release  of,  381. 

his  liability  to  his  wife's  debts,  382. 

fraud  on  his  marital  rights,  383. 

authority  of,  to  wife,  to  dispose  of  personal  estate  by  will,  ib. 

separation  of  husband  and  wife,  387. 

covenant  to  indemnify,  agai  nst  wife's  debts,  ib. 

his  right  to  the  custody  of  infant  children,  388. 

and  wife,  remarks  on  law  of,  392. 


INDEX.  445 


Idiot,  47. 

transfer  of  stock  of,  204. 
Illegality  of  contracts,  73,  88,  89. 
Illegitimate  children,  gift  to,  349,  350. 
Illusory  appointments,  271. 
Immoral  publication,  90. 

Importation  of  foreign  reprints  of  English  books,  249. 
Imprisonment  of  debtor  in  execution,  102. 

abolition  of  imprisonment  for  debt,  103,  173. 
the  Debtors'  Act,  1869,  provisions  of,  103. 
discharge  of  insolvent  from,  166,  167. 
saving  of  disability  of,  400. 
Income,  apportionment  of,  263. 
Incorporation  of  joint  stock  companies,  216,  223. 
Incorporeal  personal  property,  198. 

anciently  none,  4. 
Indemnity  of  trustees,  294. 
Indian  government  notes,  336. 

vrhat  is  East  India  stock,  284. 
Indorsement  of  sale  of  ship  on  certificate  of  registry,  57. 
of  bills  and  notes,  84,  85,  86. 
special,  85. 
in  blank,  ib. 
Industrial  and  provident  societies,  231. 
Infancy,  confirmation  of  debt  incurred  in,  77,  83. 

saving  of  disability  of,  400,  402. 
Infant,  47. 

cannot  be  a  bankrupt,  133. 
stock  of,  204. 
executor,  329. 
legacy  to,  343. 

marriage  settlements  of,  371. 
custody  of,  388,  391. 
Inferior  courts  of  records,  96. 

judgments  of,  104. 
Injunction,  writ  of,  63. 
Injury,  actions  by  executors  in  respect  of,  65. 

actions  against  executors  in  respect  of,  66,  67. 
Insolvency,  166-174. 

declaration  of,  135. 
in  the  colonies,  136. 
Insolvent  debtors,  court  for  relief  of,  now  abolished,  172. 
schedule  of,  169. 
discharge  of,  166,  169,  170,  172. 
warrant  of  attorney  formerly  executed  by,  170,  171. 
Inspectorship,  deed  of,  121. 

committee  of  inspection,  142,  144,  165. 

Insurance, 175. 

of  life,  175,  176. 
interest  of  creditor,  176. 
of  trustee,  177. 
assignees  of  life  policies  may  sue  in  their  own  names,  178. 
fire,  179,  180.  ^  ^    ,^^ 

relief  against  forfeiture  by  breach  of  covenant,  180. 
lessor  to  have  benefit  of  informal,  ib. 
protection  of  purchasers  against  breach  of  covenant,  ib. 
of  ships,  181. 

assignee  may  sue  in  his  own  name,  lo. 

companies,  225. 
Interest,  legal  rate  of,  94. 


446  INDEX. 

Interest,  on  bills  and  notes,  94,  113. 

on  judgment  debt,  101. 

on  bond,  107. 

on  debts,  113. 

appropriation  of  payments  towards,  120. 

on  debts  proved  in  bankruptcy,  148. 

always  apportioned,  2G5. 

limitation  of  actions  for  arrears  of,  403. 
International  copyright,  253. 
Intestacy,  354-368. 
Inventor  of  patent,  239. 
Investment  of  settled  funds,  281,  282,  284,  285,  286. 

form  of  trust  to  continue  or  vary  with  consent,  421. 
consent  to  change,  285. 
Ireland,  real  securities  in,  282. 
Irish  patent,  243. 
Issue,  appointment  to,  274. 

J. 

Joint  bequest,  no  lapse  by  decease  of  one  legatee,  351. 
bond,  all  must  sue,  302. 

release  by  one  obligee  bars  all,  ib. 
form  of,  308. 
and  several  bond,  304. 

form  of,  310. 
covenant,  304. 

form  of,  310. 
and  several  covenant,  304. 
and  several  debts  in  bankruptcy,  313. 
creditor,  bankruptcy  of,  306. 
debtors,  308,  309,  311. 

in  bankruptcy,  158. 
liability,  308. 
and  several  liability,  310,  311. 

of  partners,  312. 
owners,  302. 

trustees  made,  303. 

shares  of,  under  a  will,  need  not  vest  at  the  same  time,  ib. 
limitation  to  them,  their  executors,  administrators  and  assigns,  ib. 
Joint  stock  companies,  209. 

incorporated  by  charter  or  act,  ib. 

companies  clauses  acts,  210,  211. 

inconvenience  of  unincorporated,  213. 

registration  act,  214. 

banking,  214,  217. 

sale  of  shares  in,  230. 

letters  patent,  213. 

registry  office,  215. 

registered  office  of,  224. 

liability  of  shareholders  in,  213,  216,  228,  229,  320. 

transfer  of  shares,  216. 

bankruptcy  of,  217. 

with  limited  liability,  218,  219. 

shares  in,  not  goods,  wares  or  merchandife,  230. 

settlement  of  shares,  263. 

powers  of  directors  of,  319. 

liability  of  provisional  committeemen  of  projected,  320. 

provisional  registration,  215. 

complete  registration,  215,  223. 

incorporation,  216,  223. 

acts,  objects  of,  277. 


I 


INDEX.  447 

Joint  stock  companies,  winding  up  acts,  218,  228. 

acts  1862  and  1867.    219. 

liability  may  be  limited,  220. 

company  may  have  directors  with  unlimited  liability,  ib. 

power  to  reduce  capital,  222. 

subdivision  of  shares,  222. 

memorandum  of  association,  220,  221,  222. 

articles  of  association,  223. 

shares  personal  estate,  224. 

register  of  members,  ib. 

name  of  limited  company  to  be  painted  up,  ib. 

judgment  debts,  233. 

name  may  be  changed,  222. 

certificates  of  shares  or  stock,  224. 

register  evidence,  ib. 

register  of  mortgages,  225. 

associations  not  for  profit,  registration  of,  ib. 

special  resolution,  225,  226. 

contracts,  how  made,  227. 

transfer  of  shares,  ib. 

share  warrants,  ib, 

liquidators,  228. 

contributories,  ib. 

companies  seals  act,  1864.     229. 

mortgage  debenture  act,  1865.     Ib. 

sale  of  shares  not  within  statute  of  frauds,  230. 
Judge's  order,  98. 

to  be  filed  within  twenty-one  days,  101. 
Judgment,  eflPect  of,  on  goods,  50. 
debtor  summons,  136. 
on  warrant  of  attorney  or  cognovit,  98. 
in  case  of  bankruptcy,  136,  155. 
debt,  a  debt  of  record,  97. 
carries  interest,  101. 

entitled  to  preference  in  administration,  102. 
but  must  be  registered,  ib. 
foreign,  ib. 

creditors,  remedies  of,  ib. 
Scotch  and  Irish  judgments,  104. 
removal  of  judgments  of  inferior  courts,  ib. 
registry  of,  in  county  courts,  105. 
charge  of,  on  stock,  206. 
charge  of,  on  shares,  233. 

limitation  of  actions  for  money  secured  by,  401. 
Judicial  separation  of  husband  and  wife,  390. 
settlement  on,  391. 

K. 

Kin,  next  of,  their  right  to  administration,  356. 

how  traced,  362. 
Kindred,  degrees  of,  how  traced,  ib. 

remarks  on  descent  to  distant,  367. 


Laborer's  Dwellings  Act,  1855.  233. 
Lands,  sale  of,  38. 

warranty  on,  399. 

investment  of  settled  funds  iil  purchase  of,  286. 
Lapse,  350. 
Leasehold  property,  succession  duty  on,  343. 


448  INDEX. 

Legacies,  no  action  at  law  for  pecuniary,  6. 
payment  of,  340,  342. 
duty  on,  342. 

no  duty  on,  to  husband,  wife  or  royal  family,  343. 
to  infants,  ib. 
duty  on  annuities,  344. 
specific,  ib. 
ademption  of,  ib. 
demonstrative,  ib. 
general,  345. 

for  valuable  consideration,  ib. 
in  lieu  of  dower,  346. 
satisfaction  of  debts  by,  ib. 
satisfaction  of  portions  by,  ib, 
to  charities,  347. 
to  illegitimate  children,  349. 
lapse  of,  350. 
to  children,  351. 
limitation  of  suits  for,  401. 
Legatee,  rights  of  residuary,  350. 
Lessor  to  have  benefit  of  informal  insurance,  180. 
Letters  Patent,  213,  235,  307.— See  also  Patent. 
Levari  facias,  writ  of,  52. 
Liability,  limitation  of,  by  letters-patent,  214. 
in  joint  stock  company,  220. 
joint,  308-311. 
discharge  by  bankruptcy  act,  308. 

by  statute  of  limitations,  309. 
joint  and  several,  310,  311. 
of  partners  in  trade   312-318, 
of  executor  carrying  on  trade,  315. 
of  executor  for  debts,  341,  342. 
License,  letter  of,  121. 

to  use  patent,  243. 
Lien,  28. 

how  lost,  32,  44. 
of  solicitors,  30. 
of  vendor,  43. 

on  property  from  covenant  to  settle,  297. 
Life  insurance,  175. 

policies,  assignment  of,  118,  409. 
assignees  may  sue  in  their  own  names,  178. 
defence  or  reply  on  equitable  grounds  may  be  pleaded,  ib. 
notice  of  assignment,  ib. 
acknowledgment  of,  179. 

principal  places  of  business  to  be  specified  on  policy,  178. 
no  estate  for,  in  personal  property  at  law,  259. 
bequest  of  term  for,  2G0. 
interests  in  equity  in  personalty,  261,  265. 
right  of  tenant  for,  as  to  bonus,  263. 
apportionment  of  income  of  tenant  for,  ib. 
Limitation  to  joint  owners,  303. 
Limitations,  Statute  of,  7G,  82,  83,  309,  400. 

as  to  choses  in  action,  400. 

executors,  or  administrators  not  bound  to  plead,  405. 
operation  of,  barred  by  charge  of  real  estate,  ib. 
operation  of,  not  barred  by  charge  of  personal  estate,  406. 
Limited  Liability  Act,  218,  220. 
Liquidated  damages,  71. 
Liquidation  by  arrangement,  regulations  as  to,  161. 

power  of  trustee  under,  163. 
Lithograph,  copyright  in,  253. 


INDEX.  449 

Loan  societies,  231. 

London,  custom  of,  321,  364. 

Lords,  House  of,  a  superior  court  of  record,  96. 

Lost  article,  24. 

Lunatic,  47. 

transfer  of  stock,  204. 

M. 

Maintenance,  crime  of,  4. 

of  children,  provisions  for,  278,  279,  280,  281,  391. 
form  of  power  of,  in  a  settlement,  424. 
Maker  of  promissory  note,  84. 

Mala,  fides  on  receipt  of  money  or  negotiable  securities,  395. 
prohibita,  89. 
in  se,  89,  90. 
Mandamus,  writ  of,  63. 
Manufactured  goods,  property  in,  39,  40. 

contract  to  furnish,  400. 
Manufactures,  patent  for  new,  237. 

copyright  in  designs  for  articles  of  manufacture,  255. 
Maps,  copyright  in,  251. 
Marine  insurance,  181. 

policies,  assignment  of,  118,  181. 
assignee  may  sue  in  his  own  name,  181. 
Marines,  wills  of,  and  administration  to,  324,  337,  360. 
Marital  rights,  fraud  on  husband's,  383. 
Market  overt,  sale  of  chattels  in,  396. 

sale  of  stolen  goods  in,  ib. 
Marks,  trade,  256,  257. 
Marriage,  a  valuable  consideration,  74. 
restraints  on,  369. 
consent  to,  370. 
brocage,  ib. 

agreement  on,  must  be  in  writing,  78. 
settlement  on,  297,  371. 
dissolution  of,  389,  391. 
form  of  a  settlement  on,  418. 
Married  woman,  47. 

when  she  may  be  bankrupt,  133. 
executrix,  329. 
saving  of  disability  of,  400. 
See  also  Wife. 
Matrimonial  causes,  court  for,  389. 
Memorandum  in  writing,  what  is,  42,  81. 
Minor,  will  of,  now  invalid,  322. 
See  Children  and  Infant. 
Models,  copyright  in,  252. 
Money,  title  to,  395. 

limitation  of  action  for  money  secured  by  bond,  402. 
Monopolies,  statute  of,  235. 
Mortgage  of  goods,  48. 
of  ships,  59. 

of  ships,  certificate  of,  60. 
of  property  of  bankrupt,  144. 

of  leaseholds,  deduction  of  amount  of  debt  from  probate  value,  338. 
exempt  from  stamp  duty,  61. 
limitation  of  action  for  money  secured  by,  401. 
Mortis  causa,  donation,  327. 
Mortmain,  statue  of,  347. 

Mother,  right  of,  under  Statute  of  Distributions,  361. 
Musical  compositions,  copyright  in,  248. 


450  ■  INDEX. 


N. 

Navy  wills  and  administration  to  seamen  in  the,  323,  324,  338,  3G0. 
Necessaries,  husband  ))ound  to  supply  his  wife  with,  382,  390. 
Negotiable  securities,  title  to,  395. 

See  Bills  of  Exchange  and  Promissory  Notes. 
Nephews,  appointment  to,  273. 
Newspapers,  copyright  in,  255. 
Next  of  kin,  right  of,  to  administration,  356. 

their  interest  vests  from  the  decease  of  the  intestate,  357. 
how  traced,  362. 
Note  of  a  contract,  what  is,  42,  81. 
Notes,  promissory,  84,  110,  118. 

Indian  government  notes,  336. 
not  preferred  in  administration,  110. 
carry  interest,  113. 
title  to,  395. 
Notice  of  dishonor  of  bill  or  note,  86. 

to  debtor  on  assigning  the  debt,  118. 
of  assignment  of  life  policies,  178,  179. 
to  one  partner  notice  to  all,  318. 
to  trustees  on  assigning  stock,  407. 
Nuncupative  will,  322. 

who  may  now  make,  323,  324. 

0. 

Objects  of  a  contract,  lawful  or  unlawful,  90,  94. 
Offer,  acceptance  of,  81. 
Officer,  bankrupt,  1G8,  173. 

probate  of  will  of,  337. 
Official  assignees,  141. 
Order  and  disposition,  goods  in,  of  bankrupt,  54,  314. 

choses  in  action  in,  of  bankrupt,  408. 
Ownership,  personal  property  the  subject  of  absolute,  7,  9,  259. 


Paintings,  copyright  in,  252. 

Palatine  courts,  superior  courts  of  record,  96. 

Paraphernalia,  374. 

Parliament,  the  supreme  court,  96. 

privilege  of,  does  not  prevent  adjudication  in  bankruptcy,  160. 
vacation  of  seat,  by  bankrupt,  ib. 
Parol  contracts,  72. 
Particular  lien,  29. 
Partners,  liability  of,  312,  318. 

bankruptcy  of,  313,  317. 
dormant,  312,  314. 
ostensible,  314. 
retiring,  315. 
deceased,  ib. 

by  participation  in  profits,  316. 
liability  for  each  other's  acts,  318. 
act  to  amend  law  as  to,  316. 
notice  to  one  notice  to  all,  318. 
Part  owners  of  ships,  56. 
Patent,  234,  235. 

stamps  on,  236. 

term  of,  ib. 

for  new  manufactures  only,  2^7. 

first  inventor  of,  239. 


INDEX.  451 

Patent,  specification  of,  238,  240. 
disclaimer,  241. 
register  of,  242. 

vesting  of,  in  more  than  twelve  persons,  ib. 
license  to  use,  243. 
Scotch  and  Irish,  ib. 
assignment  of,  244. 
registers  of  proprietors  of,  245. 
tenants  in  common  of,  307. 
form  of  letters-patent,  413. 
Pawn,  27,  28,  49. 
Payee,  84. 
Payment  of  debts,  120. 

by  executor,  339. 
charge  of  real  estate  for,  405. 
of  interest,  121. 
Penalty,  71,  108. 

Penalties,  limitation  of  actions  for,  404. 
Pendente  lite^  administrator,  358. 
Periodical  works,  copyright  in,  247. 
Perpetuities,  268. 

in  exercise  of  powers,  275. 
Personal  property,  the  subject  of  absolute  ownership,  7,  259. 
succession  duty,  343. 
annuity,  198. 
Petitioning  creditor  in  bankruptcy,  139. 
Photographs,  coi^yright  in,  252. 
Pious  uses,  354. 
Plans,  copyright  in,  251. 
Pledge  of  goods,  27,  28,  49.  ^ 

by  factor  or  agent,  398. 
Policy  of  insurance,  175. 

assignment  of,  409. 
Portions,  appointment  of,  271. 

vesting  of,  charged  on  land,  277. 

satisfaction  of,  by  legacies,  346. 

Possession,  choses  in,  4. — See  Choses  in  Possession. 

goods  in,  of  bankrupt,  54. 
Possibility,  260. 

how  alienable,  ib.  , 

Post-office  savings  banks,  232. 
Power  of  attorney,  117. 

construed  strictly,  398. 
decease  of  person  giving,  ib. 

payment  by  trustee,  executor,  or  administrator,  in  pursuance  of,  ib. 
form  of  a,  420. 
Powers,  23,  269. 

over  personal  property,  270. 
of  appointment,  337. 

of  appointment  amongst  children,  271,  273,  274. 
trustee  of  bankrupt  may  exercise,  270. 
frauds  on,  275. 
perpetuity  in  exercise  of,  ib. 
to  appoint  new  trustees,  289. 
form  of  power  to  appoint  new  trustees,  429. 
given  to  married  women,  386. 
form  of,  of  appointment  amongst  children,  423. 
form  of,  given  to  a  wife,  424. 
Primogeniture,  remarks  on,  366. 
Prints,  copyright  in,  251. 

Privilege  of  parliament  does  not  prevent  adjudication  in  bankruptcy,  IGO. 
vacation  of  seat  by  bankrupt,  ib. 
35 


452  INDEX. 

Probate,  Court  of,  332,  333,  336,  356. 
of  wills,  332. 

acts  of  executor  before,  ib. 
in  what  court  to  be  taken  out,  333. 
in  principal  registry,  334. 
in  district  registr}',  ib. 
evidence  required  on,  ib. 
in  common  form,  335. 
per  testes,  ib. 
county  courts,  ib. 
stamp  duties  on,  336,  337. 
when  exempt  from  stamp  duties,  337,  338. 
civil  service,  and  military  allowances,  338. 
of  seamen's  will,  ib. 

mortgage  debt,  deduction  of  amount  of,  from  probate  value,  ib. 
duty  attaches  to  estate  of  deceased  legatee,  352. 
Profits  of  partnership,  participation  in,  316-318. 
Promise,  implied,  72. 

insufficient  of  itself  to  form  a  contract,  74,  76. 
Promissory  Notes,  84,  110,  118,  130. 

not  preferred  in  administration,  110. 
carry  interest,  113. 
title  to,  395. 
Proof  of  debts  in  bankruptcy,  146,  148,  149,  162. 
Property,  real  and  personal,  3,  7. 
in  British  ships,  56. 
in  goods,  23,  33. 
requisite  to  a  grant,  34. 
Protest,  86. 

Provisional  committee-man,  liability  of,  320.  # 

Public  officer  of  banking  company,  213,  214. 
Publication,  immoral,  90. 

Purchase  of  land,  investment  of  settled  funds  in,  286. 

Purchaser  from  executor  not  bound  to  see  to  the  application  of  his  purchase-money, 
339. 
protection  of,  in  bankruptcy,  150. 

R. 

Rasure  of  deeds,  88. 

Rates  and  taxes  due  from  bankrupt,  155. 

Real  estate,  charge  of,  for  payment  of  debts,  405. 

Real  securities,  what  are,  282. 

in  Ireland,  282,  283. 
Receipt  by  surviving  joint  owner,  when  good,  306. 
by  one  executor  a  good  discharge,  330. 
by  executor  on  sale  a  good  discharge,  339. 
by  husband  of  wife's  chose  in  action,  375,  376. 
clause  in  settlements,  288. 

form  of  a,  428. 
Recognisance,  105. 

limitation  of  actions  on,  402. 
Record,  debts  of,  96,  105. 
courts  of,  96. 

of  proceedings  in  bankruptcy,  160. 
Reference  to  arbitration,  183,  184. 

revocation  of,  186. 
Registration  of  bill  of  sale,  49,  50. 
of  ships,  56. 
certificate  of,  57. 
of  transfers  of  ships,  58. 
of  judgment  debts,  102. 


INDEX,  453 


Registration  of  judgments  in  county  courts,  105. 
of  deeds  of  arrangements,  123,  124. 
of  joint-stock  companies,  215,  223. 
of  banking  companies,  219. 
of  patents,  242,  245. 
of  copyrights,  248. 
of  sculptures,  252. 
in  court  of  probate,  334. 
^Reimbursement  of  trustees,  294. 
Release  by  one  joint  obligee  bars  all,  302. 

of  one  joint  debtor  discharges  all,  308. 
of  one  joint  and  several  debtor,  311. 
by  husband  of  wife's  reversionary  chose  in  action,  381. 
of  money  charged  on  real  estate,  ib. 
Rent,  arrears  of,  105,  113. 

distraint  for,  in  bankruptcy,  148,  155. 
proof  in  case  of  rent,  148. 
limitation  of  actions  for,  403. 
Renunciation  of  office  of  executor,  330. 
Replevin,  action  of,  3. 

limitation  of  action  of,  400. 
Reputed  ownership,  54. 

of  chose  in  action,  408. 
Residuary  legatee,  rights  of,  350. 
Residue,  former  right  of  executors  to,  352. 
right  of  next  of  kin  to,  352. 
form  of  assignment  of  a  share  in,  419. 
Respondentia,  182. 
Restraint  of  trade,  contract  in,  91. 
on  accumulation,  268. 
on  anticipation,  385. 
on  marriage,  369. 
Retainer  by  executor  of  his  own  debt,  332. 

by  administrator  of  his  own  debt,  357. 
Reversionary  chose  in  action  of  wife,  assignment  of,  379,  380. 
Reviews,  copyright  in,  247. 
Revocation  of  submission  to  arbitration,  186. 
of  the  trusts  of  a  settlement,  299. 
ofa  will,  325. 
Royal  family,  no  duty  on  legacies  to,  343. 
Rule  in  Shelley's  Case,  267. 

S, 

Sale  of  goods,  38-45,  82 

of  goods  in  market  overt,  396. 

of  goods  by  factor  or  agent,  398. 

of  lands,  direction  for,  converts  them  into  money  in  equity,  287. 

warranty  on  sale  of  lands,  399. 

of  ships,  certificate  of,  60. 
Salvage,  29. 
Satisfaction  of  debts  by  legacies,  346. 

of  portions  by  legacies,  ib. 
Savings  banks,  231,  360. 
Scire  facias  to  revive  a  judgment,  99. 
Scotch  patent,  243. 
Sculptures,  copyright  in,  252. 
Sea  policies,  assignment  of,  118,  181. 
Seamen,  wills  of,  323,  324. 

probate  of  wills  of,  338. 
administration  to  effects  of,  360. 
Securities  of  creditor,  how  affected  by  composition,  12i. 


454  INDEX. 

Sk(  TRITIES  for  money  won  at  play,  03. 

sccurcil  creditor  in  l)ankrnptcy,  138,  150. 
l)roof  in  bankruptcy  by  creditor  holding,  150. 
crovernment,  what  are,  281. 
real,  what  are,  282. 
real,  in  Ireland,  ib. 
stolen,  397. 
Sei'.vrate  use,  trust  for  woman's  separate,  384,  385. 

gift  for  "  sole  use"  docs  not  create  trust  for,  384. 
form  of  a  trust,  422. 
Separation  of  husband  and  wife,  387,  390. 
SE(,irESTRATiON  of  profits  of  bankrupt,  168,  172,  173. 
Set-off  in  bankruptcy,  149. 
Settlement  of  personal  property,  259. 
wife's  equity  for  a,  377. 
covenant  for,  of  wife's  future  property,  295. 
covenant  for,  of  husband's  property,  296. 
voluntary,  void  as  against  creditors,  153,  154,  297. 
voluntary,  binding  on  settlor,  298. 
for  settlor's  own  benefit  revocable,  299. 

voluntary,  of  personal  estate,  not  void  against  subsequent  purchasers,  300. 
stamps  on,  ib. 
on  marriage,  297. 
by  infants,  371. 
on  judicial  separation,  391. 

antenuptial  or  postnuptial,  itiquiry  into  on  dissolution  of  marriage,  391. 
form  of  a  marriage  settlement  of  residuary  personal  estate  and  stock  in 
the  funds,  418. 
Shares  in  joint  stock  companies,  6,  209,  224. 

sale  of,  230. 

transfer  of,  216,  227,  409. 
share  warrants,  227. 
title  to,  410. 
Shelley's  Case,  rule  in,  267. 
Ship.s.  55. 

colonial  shipping,  55,  n. 
register,  no  trust  entered  on,  56. 
transfer  of  property  in,  58. 

equities  may  be  enforced  against  owner  and  mortgagees,  57. 
mortgage  of,  59. 

no  stamp  duty  on  transfer  of,  61. 
certificate  of  registry,  57. 
certificate  of  mortgage  of,  60. 
general  ship,  62. 
insurance  of,   181. 

assignee  may  sue  in  his  own  name,  ib. 
Shops  in  the  city  of  London  are  market  overt,  396. 
Signature  to  contracts,  81. 
Simple  contract  debts,  97,  110. 

limitation  of  actions  for,  403. 
Slsters,  right  of,  under  Statute  of  Distributions,  361. 
Soldiers,  wills  of,  323. 

probate  of  wills  of,  .337,  338. 
administration  to  effects  of,  360. 
Sole  use.  gift  for,  384. 
Solicitor,  lien  of,  30. 

not  liable  as  such  to  bankrujjt  laws,  133. 
cannot  charge  for  professional  trouble  as  trustee,  292. 
may  be  paid  for  services  as  trustee  in  bankruptcy,  145. 
Specialty  debts,  97,  105,  110. 

abolition  of  priority  of  specialty  debts,  97^  106,  109,  113. 
limitation  of  actions  for,  402. 


INDEX.  45;') 

Specific  legacy,  344. 

Specification  of  patent,  238,  240. 

Stamp  duty,  none  on  agreement  for  sale  of  goods,  42,  n. 

none  on  transfer  of  ships,  Gl. 

on  agreements,  78,  n. 

on  bills  and  notes,  87,  n. 

on  warrants  of  attorney,  99,  n. 

on  bonds,  108,  n. 

on  covenants,  ib. 

on  deeds  of  arrangement,  124,  126. 

on  contract  notes,  204. 

on  policies  of  life  insurance,  177,  n. 

on  fire  insurance,  repeal  of,  181,  n. 

on  sea  insurance,  ib. 

on  awards,  197. 

on  mortgage  to  building  society,  233. 

on  letters-patent,  236. 

on  appointment  of  new  trustees,  291. 

on  settlements,  300 

on  probates,  336. 

on  legacies,  301. 

on  letters  of  administration,  359. 

on  shares  of  intestate's  estates,  3G4. 
Statute  of  Frauds. — See  statute  29  Car.  II.  c.  3. 
Statutes  cited. 

13  Edw.  I.  c.  18,  (elegit,)  51. 

c.  19,  (intestates,)  355. 
c.  45,  [scire  facias,)  99. 
4  Edw.  III.  c.  7,  (action  by  executors,)  65. 
15  Edw.  III.  c.  5,  (executors,)  ib. 

31  Edw.  III.  c.  11,  (administrator,)  355. 
21  Hen.  VIII.  c.  5,  (next  of  kin,)  356. 

27  Hen.  VIII.  c.  10,  (Statute  of  Uses,)  11,  75,  262. 

32  Hen.  VIII.  c.  37,  (arrears  of  rent,)  376. 
37  Hen.  VIII.  c.  9,  (interest,)  5,  113. 

2  &  3  Phil.  &  Mary,  c.  7,  (stolen  horses,)  397. 

13  Eliz.  c.  5,  (gifts  for  defrauding  creditors,)  48,  52,  75,  297. 

c.  7,  (bankrupts,)  135,  139. 

c.  20,  (charges  on  benefices,)  92. 
27  Eliz.  c.  4,  (voluntary  settlements,)  299. 
31  Eliz.  c.  12,  (stolen  horses,)  397,  398. 

21  Jac.  I.  c.  3,  (patents,)  235,  236. 

c.  16,  (Statute  of  Limitations,)  76,  82,  83,  400,  403. 

22  &  23  Car.  11,  c.  10,  (distribution,)  357,  361. 

29  Car.  II.  c.  3,  (Statute  of  Frauds,)  ss.  1,  2.    -85,  78,  204,  342 
s.  4,  (contract  in  writing,)  43,  297. 
S.  16,  (writ  of  fieri  facias,)  52. 
s.  17,  (sale  of  goods,)  39,  40. 
ss.  19-21,  (nuncupative  testament,)  322. 
s.  22,  (revocation  of  will  of  personal  estate,)  323. 
s.  23,  (soldiers  and  mariners,)  324. 
s.  25,  (husband,)  361,  376. 

1  Jac.  IT.  c.  17,  (distribution,)  361. 

2  Will.  &  Mary,  sess.  1,  c.  5,  s.  2,  (distress  for  rent,)  33. 
4  &  5  Will.  &  Mary,  c.  2,  (custom  of  York,)  321. 

7  &  8  Will.  III.  c.  38,  (custom  of  Wales,)  ib. 

8  &  9  Will.  III.  c.  11,  (judgments,)  109. 

9  &  10  Will.  III.  c.  15,  (arbitration,)  185,  193. 

2  &  3  Anne,  c.  5,  (custom  of  York,)  321. 

3  &  4  Anne,  c.  9,  (promissory  notes,)  5,  118. 

4  Anne,  c.  16,  (nuncupative  testaments,)  322. 
4  &  5  Anne,  c.  16,  (bond  debts,)  108. 


456  INDEX. 

Statctes  cited. 

7  Auue,  c.  25,  (promissory  notes,)  5,  118. 

8  Anne,  c.  19,  (copyright,)  246. 

9  Anne,  c.  14,  (money  won  at  play,)  93. 
12  Anne,  stat.  2,  c.  IG,  (usury,)  93. 

I  Geo.  I.  Stat.  2,  c.  19,  (stock,)  201,  202,  208. 

II  Geo.  I.  c.  18,  (custom  of  London,)  321. 

7  Geo.  II.  c.  8,  (stoclv-jobbin(^,)  92,  203. 

8  Geo.  II.  c.  13,  (coi)yrii,dit  in  prints,  &c.,)  251. 

9  Geo.  II.  c.  36,  (mortm.ain,)  347. 

19  Geo.  II.  c.  37,  (ship  insurance,)  176,  181. 
7  Geo.  III.  c.  38,  (copyright  in  prints,)  251. 
14  Geo.  III.  c.  48,  (life  insurance,)  176. 

c.  78,  (Metropolitan  Building  Act,)  179. 
17  Geo.  III.  c.  30,  (bills  of  exchange,)  85. 

c.  57,  (copyright  in  prints,  &c.,)  251. 
36  G*eo.  III.  c.  52,  (legacy  duty,)  328,  342,  344. 

38  Geo.  III.  c.  71,  (copyright  in  sculptures,  &c.,)  252. 

c.  87,  (infant  and  absent  e.xecutor,)  329,  358. 

39  &  40  Geo.  III.  c.  98,  (accumulations,)  269. 
41  Geo.  III.  c.  107,  (copyright,)  246. 

46  Geo.  III.  c.  135,  (bankruptcy,)  150. 

48  Geo.  III.  c.  88,  (bills  of  exchange,)  84. 

c.  123,  (discharge  of  small  debtors,)  172. 

49  Geo.  III.  c.  121,  (bankruptcy,)  150. 

54  Geo.  III.  c.  56,  (copyright  in  sculptures,  &c.,)  252. 

C.  156,  (copyright,)  246. 

55  Geo.  III.  c.  184,  (stamps,)  42,  336,  337,  343,  359,  360,  364. 

56  Geo.  III.  c.  60,  (unclaimed  dividends,)  406. 

c.  137,  (bankruptcy,)  150. 

3  Geo.  IV.  c.  39,  (warrants  of  attorney  and  cognovits,)  99,  101. 

4  Geo.  IV.  c.  83,  (factors  and  agents,)  398. 

6  Geo.  IV.  c.  16,  (bankruptcy,)  49,  54,  76,  120,  124, 139,  150,  156,  270,  298,  309,  313. 

c.  94,  (factors  and  agents,)  398. 

7  Geo.  IV.  c.  6,  (bills  and  notes,)  85. 

^      c.  46,  (banking  companies,)  214. 
c.  57,  (insolvency,)  166. 
7  &  8  Geo.  IV.  c.  29,  (stolen  goods,)  397. 

9  Geo.  IV.  c.  14,  (written  contracts,)  40,  77,  82,  83,  309,  404. 

:.  32,  (felony,)  47. 

10  Geo.  IV.  c.  56,  (friendly  societies,)  230. 

11  Geo.  IV.  &  1  Will.  IV.  c.  20,  (seamen's  wills,)  324,  338. 

c.  38,  (insolvency,)  166. 

c.  40,  (executors  trustees  of  residue,)  352. 

c.  46,  (illusory  appointments,)  271. 

c.  65,  (infants,  idiots  and  lunatics,)  204. 

1  k  2  Will.  IV.  c.  32,  (game  act,)  20,  22. 

c.  56,  (bankruptcy  court,)  54,  120,  132,  139,  140. 

2  &  3  Will.  IV.  c.  40,  rseamen's  wills,)  338. 

3  &  4  Will.  IV.  c.  15,  (copyright  in  dramatic  works,)  248. 

c.  27,  (limitations,)  401,  403. 

c.  42,    s.  2,  (actions  by  and  against  executors,)  65,  67,  401. 

S.  3,  (limitation,)  402,  404. 

s.  4,  (disabilities,)  ib. 

s.  5,  (acknowledgment,)  402. 

ss.  28,  29,  (interest,)  114. 

s.  39,  (arbitration,)  186,  190. 

s.  40,  (witnesses  on  arbitration,)  187. 
c.  47,  (bankruptcy,)  132. 
c.  74,  (fines  and  recoveries,)  380,  382. 
c.  98,  (bills  and  notes,)  93. 
c.  105,  (dower,)  346. 


INDEX.  457 

Statdtes  cited. 

4  &  5  Will,  IV.  c.  22,  ^apportionment  of  income,)  2G3,  2G4. 

c.  25,  (seamen's  pay,)  338. 

c.  29,  (real  securities  in  Ireland,)  283. 

c.  40,  (friendly  societies,)  230. 

c.  94,  (public  officer,)  213. 

5  &  6  Will.  IV.  c.  41,  (securities  for  illegal  consideration,)  90,  93. 

c.  83,  (patents,)  237,  238,  241. 

6  &  7  Will.  IV.  c.  32,  (building  societies,)  232,  233. 

c.  59,  (coi)yright  in  prints,  &c.,)  251. 
'  c.  76,  (newspapers,)  255. 

7  Will.  IV.  &  1  Vict.  c.2(>,  (wills,)  208,266,321,322,323,324,325,334,335,350,351. 

c.  73,  (public  officer,)  213,  214. 
1  &  2  Vict.  c.  26,  (banking  companies,)  214. 

c.  110,  (insolvent  debtors,  132,  166. 

ss.  9,  10,  (execution  of  warrants  of  attorney,)  100. 

s.  12,  (seizure  of  notes  and  securities,)  118,  297. 

s.  13,  (judgments  a  charge  on  real  estate,)  155. 

ss.  14,  15,  (charging  stock,)  206,  207,  234,  297. 

B.  16,  (imprisonment,)  103. 

s.  17,  (interest  on  judgment  debt,)  102. 

s.  22,  (judgment  of  inferior  courts,)  104. 

s.  35,  (discharge,)  167. 

s.  36,  (petition  by  creditor,)  ib. 

B.  37,  (vesting  order,)  ih. 

8.  45,  (assignees,)  168. 

8.  47,  (sale,)  ib. 

s.  48,  (mortgage,^  ib. 

s.  55,  (benefice,)  ib. 

s.  56,  (officer,)  ib. 

s.  59,  (voluntary  preference,)  ib. 

B.  62,  (dividend',)  168. 

s.  69,  (schedule,)  169. 

ss.  70,  71,  72,  (examination,)  ib. 

s.  75,  (discharge,)  196. 

ss.  76,  77,  78,  (postponement  of  discharge,)  169,  170. 

s.  79,  (costs,)  170. 

s.  80,  (annuities,)  ib. 

ss.  87,  88,  89,  (future  execution,)  ib. 

ss.  90,  91,  (freedom  from  execution,)  ib. 

2  &  3  Vict.  c.  11,  (bankruptcy,)  150. 

c.  29,  (bankruptcy,)  132,  156. 
c.  37,  (usury,)  94. 
c.  54,  (custody  of  infants,)  389. 
c.  67,  (patents,)  237. 

3  &  4  Vict.  c.  73,  (friendly  societies,)  230. 

c.  82,  (stock  judgments,)  207,  297. 
c.  110,  (loan  societies,)  231. 
c.  Ill,  (banking  companies,)  214. 
5  Vict.  c.  5,  (Court  of  Exchequer  in  equity,)  205. 

5  &  6   Vict.  c.  39,  (factors  and  agents,)  398. 

c.  45,  ((\)pyright,)  246,  247,  248,  249,  250. 

c.  79,  (stamps  on  probates,)  336. 

c.  85,  (banking  companies,)  214. 

c.  100,  (copyright  in  designs,)  255,  256. 

p    116    Cinsolvencv,)  170,  171. 

c  122;  (b^ankruptc;!)  54,'  76,  132,  140,  306,  309,  313. 

6  &  7   Vict.  c.  65,  (copyright  in  designs  )  256. 

c.  66,  (index  to  -warrants  of  attorney,poi. 

7  &  8  Vict.  c.  12,  (international  copyright,)  253,  254. 

c.  32,  (bank  notes,)  85. 
c.  60,  (aliens,)  46. 


•158  INDEX. 

Statutes  cited. 

7  &  8  Vict.  c.  69,  (patents,)  237,  241. 

c.  70,  (arranpcinents  between  debtors  and  creditors,)  172. 

c.  76,  transfer  of  property,)  2G0. 

c.  96,  (insolvency,)  103,  132,  130,  171. 

c.  110,  (joint  stock  companies,)  209,  214,  215,  216,  218. 

c.  Ill,  (banl<ru])tcy  of  joint  stock  companies,)  218. 

c.  113,  (banking  companies,)  209,  214,  217. 

8  &  9   Vict.  c.  IG,  (('onii)anics  Clauses  Consolidation  Act,)  210,  211,  212. 

c.  18,  (lands  clauses  consolidation  Act,)  210. 

c.  20,  (railways  clauses  consolidation,)  30,  210. 

c.  48,  (bankrupt's  oath,)  132. 

c.  62,  (unclaimed  dividends,)  407. 

c.  76,  (legacy  duty,)  328,  342. 

c.  93,  ^copyright  in  colonies,)  250. 

c.  97,  (stock,)  205,  208. 

c.  106,  (real  property,)  35,  260. 

c.  109,  (gaming  and  wagering,)  93. 

c.  127,  (execution,)  53,  103. 

9  &  10  Vict.  c.  27,  (friendly  societies,)  230. 

c.  93,  (death  by  accident,  compensation,)  65,  66. 
c.  95,  (small  debts,)  6,  97,  103. 

10  &  11  Vict.  c.  14,  (market  clauses  consolidation,)  210. 

c.  15,  (gas  clauses  consolidation,)  ib. 

0.  17,  (^ water  clauses  consolidation,)  ih. 

c.  27,  (harbors  clauses  consolidation,)  ib. 

0.  34,  (paving  clauses  consolidation,)  ib. 

0.  65,  (cemeteries  clauses  consolidation,)  ib. 

c.  78,  Moint  stock  companies,)  214,  215,  216,  217. 

c.  83,  (aliens,)  46. 

0.  95,  (coj)yright  in  colonies,)  250. 

c.  96,  (trust  funds,)  294,  295. 

c.  102,  (bankruptcy  and  insolvency,)  132,  167,  170,  171. 

11  &  12  Vict.  c.  29,  (h.ares,)  20. 

c.  45,  (Winding-up  Act,)  218. 
c.  86,  (bankruptcy,)  132. 

12  &  13  Vict.  c.  67,  (sequestration,  168. 

c.  74,  (trustees'  relief,)  294. 

c.  101,  (small  debts,)  97. 

c.  106,  (bankruptcy,)  132,  133. 

s.  6,  (court,)  96. 

s.  8,  (rules,)  140. 

ss.  6-11,  (commissioners,)  140. 

s.  66,  (who  traders,)  133. 

s.  67,  (acts  of  bankruptcy,)  134. 

s.  68,  (composition  deeds,)  124. 

ss.  78,  79,  (affidavit  of  debt,)  137. 

8.  81,  (admission  of  debt,)  ib. 

s.  125,  (order  and  disposition,)  49,  54. 

s.  126,  (voluntary  gifts,)  298. 

s.  129,  (one  year's  rent,)  155. 

s.  133,  (executions,  &c.,)  151. 

s.  140,  (joint  creditors,)  213. 

s.  141,  (assignees,)  120,  158. 

s.  142,  assignees,)  158. 

s.  147,  (powers,)  270. 

s.  152,  (joint  debts, ^  306. 

s.  168,  ^clerk's  pay,)  155. 

s.  1G9,  (laborer's  wages,)  ib. 

s.  198,  (certificate,)  156. 

s.  199,  (certificate,)  ib. 

s.  200,  (certificate,)  156,  309. 


INDEX.  459 

Statutes  cited. 

12  &  13  Vict.  c.  106,  s.  204,  (promise  to  pay  barred  debt,)  70. 

s.  224,  (arranjrements  by  deed,)  124. 
sched.  Z.  15G.  * 

c.  108,  (winding-up  amendment,)  218. 

13  &  14  Vict.  c.  21,  (interpretation,)  190. 

c.  35,  (Court  of  Cliancery,)  340,  357. 

c.  60,  (Trustee  Act,  1850,)  291,  292. 

c.  61,  (small  debts,)  6,  97. 

c.  83,  (railways,)  218. 

c.  97,  (stamps,)  99,  108,  300. 

c.  104,  (Designs  Act,  1850,)  252,  256. 

c.  115,  (friendly  societies,)  230. 

14  &  15  Vict.  c.  8,  (designs,)  256. 

c.  25,  (agricultural  fixtures,  emblements,)  15,  18. 
c.  99,  (evidence,)  187. 

15  &  16  Vict.  c.  3,  (administration  for  crown,)  364. 

c.  6,  (designs,)  256. 

c.  12,  (international  copyright,)  252,  254,  255. 
c.  24,  (wills  amendment,)  323. 
c.  31,  (industrial  societies,)  231. 
c.  54,  (small  debts,)  97,  105. 
c.  55,  (trustees,)  291,  292. 
c.  65,  (friendly  societies,)  230. 

c.  76,  (common  law  procedure,)  25,  70,  71,  72,  100,  120,  330. 
c.  83,  (patent  law  amendment,)  235,  237,  238, 239,  240,  241,  242,  243, 
244,  245. 

16  &  17  Vict.  c.  5,  (stamps  on  patents,)  236,  244,  416. 

c.  51,  (succession  duty,)  300,  303,  343,  344. 

c.  59,  (stamps,)  86,  177,  213. 

c.  63,  (stamps  on  life  policies,)  177. 

c.  70,  (lunatics,)  204,  205. 

c.  107,  (copyright,)  250. 

c.  115,  (patents,)  237,  239,  240. 

c.  123,  (friendly  societies,)  230. 

17  &  18  Vict.  c.  16,  (county  courts  jurisdiction,)  97,_  171. 

c.  25,  (industrial  and  provident  societies,)  231. 

c.  36,  (bills  of  sale,)  49. 

c.  83,  (bills  of  exchange  and  promissory  notes,)  87. 

c.  90,  (repeal  of  usury  laws,)  94. 

c    101    ^^friendlv  societies.)  230. 

c!  104',  (Merchant  Shipping  Act,)  30,  55,  56,  58,  59,  60,  61,  325,  338. 

c.  120,  (Merchant  Shipping  Repeal  Act,)  00. 

c.  125,  (Common  Law  Procedure  Act,  1854,)  4. 

ss.  3,  6,  7,  (arbitration,)  185. 

ss.  5,  8,  9,  (award,)  193,  194. 

s  11   (proceedings  at  law  may  be  stayed  by  arbitration,)  184. 

s.  12,  (appointment  of  arbitrator  by  a  judge,)  188,  19j. 

s.  13,  (death  of  arbitrator,)  188. 

8.  14,  (appointment  of  umpire,)  104. 

s.  15,  (time  for  making  award,)  190,  195. 

s.  16,  (possession  of  lands,)  197. 

s.  18,  (submission  to  arbitration  by  consent  may  be  made  a 
rule  of  court,)  186.  . 

8   60,  (court  may  examine  judgment  debtor  as  to  debts  o«  ing 
to  him,)  119. 

ss.  61,  65,  (garnishee,)  ib. 

ss.  68,  69,  (writ  of  mandamus,)  63. 

s.  78,  (order  for  restitution  of  chattels,)  4. 

ss.  79-82,  (writ  of  injunction,)  64. 
18  &  19  Vict.  c.  15,  s.  7,  (judgments,)  104. 

c.  43,  (marriage  settlement  of  infants,)  371. 


460  INDEX. 

Statutes  citeJ. 

J8  &  19  Vict.  c.  63,  (friendly  societies,)  230.  231. 

c.  G7,  (bills  of  exchange  ami  promissory  notes,)  87. 

c.  91,  (merchant  shii)j)ing  amendment,  30,  55,  58. 

c.  Ill,  (bills  of  lading.)  G,  37,  62. 

c.  122,  (fire  insurance,)  179. 

c.  132,  (laborers'  dwellings,)  233. 

c.  133,  (Limited  Liability  Act,)  218. 

19  &  20  Vict.  c.  40,  (provident  societies,)  231. 

c.  47,  (joint  stock  companies,)  218,  219. 
c.  94,  (administration,)  304. 
'  c.  97,  s.  1,  (writ  of  execution,  bonci  fide  purchaser,)  52,  396. 

s.  2,  (restitution  of  chattels,)  4. 
,  s.  3,  (consideration  for  promise,)  79. 

s.  5,  (surety,)  115. 

s.  10,  (infancy,  coverture,  lunacy,)  400,  402,  403. 

s.  11,  (joint  debtor,  absence  beyond  the  seas,)  309,  402. 

S.  12,  (absent  debtors,)  309,  400,  403. 

s.  13,  (debts,  limitations,)  77,  82,  404. 

s.  14,  (co-contractor's  interest,)  83,  312. 
c.  108,  (Small  Debts  Acts,)  6,  97. 

20  &  21  Vict.  c.  14,  (winding-up  acts,)  209,  218,  219. 

c.  49,  (joint  stock  companies,)  ib. 

c.  54,  (fraudulent  trustees,  bankers,)  295. 

c.  57,  (disposition  of  wife's  reversionary  interest,)  379,  392. 

c.  77,  (Court  of  Probate  Act,  1857,)  332,  356. 

s.  3,  (lords  of  manors,)  333. 

s.  23,  (court  of  record,)  96. 

s.  29,  (practice,)  335. 

ss.  46,  47,  (district  registry,)  334. 

s.  59,  (abode  of  testator,)  ih. 

s.  70,  (administrator  jOCTj^fw^e  lite,)  358. 

s.  71,  (receiver,)  359. 

ss.  72,  74,  (administrator,)  358. 

s.  73,  (administration,)  359. 

s.  79,  (executor,)  331. 

s.  86,  (voidable  probates,)  334. 
c.  78,  (Joint  Stock  Companies  Winding-up,)  318. 
c.  79,  (probates,)  336. 
c.  80,  (Joint  Stock  Companies,)  219. 
c.  85,  Court  for  Divorce  and  Matrimonial  Causes,)  388,  389. 

s.  7,  (decree  for  judicial  separation,)  389. 

s.  21,  (protection  order,)  390. 

ss.  24,  32,  (alimony,)  ib. 

s.  25,  (wife/wHe  sole,)  390,  391. 

s.  26,  (wife's  necessaries,  joint  power,)  390. 

s.  27,  (petition,)  389. 

s.  35,  (custody  and  maintenance  of  children,)  391. 

s.  45,  children's  settlement,)  390. 

s.  57,  (petition,)  389. 

21  &  22  Vict.  c.  27,  (Court  of  Chancery,)  48. 

0.  56,  (probates,)  336. 

c.  60,  (joint  stock  companies,)  218,  219. 

C.  70,  (copyright.)  256. 

c.  74j  (small  debts,)  97. 

c.  91,  (joint  stock  companies,)  218,  219. 

C.95,  (executors,)  331,  332,  336,  356,  357,  358,  360. 

c.  101,  (Court  for  Divorce,)  230. 

c.  10&,  (wife's  property,)  389,  390. 

22  Vict.  c.  13,  (patents,  munitions  of  war,)  240. 
22  &  23  Vict.  c.  35,  s.  6,  (fire  insurance,)  180. 

s.  7,  (informal  insurance.)  ib. 


INDEX.  461 

Statutes  cited. 

22  &  23  Vict.  c.  35,  s.  8,  (punchaser,)  181.  « 

s.  12,  (powers,)  270. 
s.  21,  (assignment  to  self,)  4ll. 
s.  23,  (payment  of  money  by  trustees,)  288. 
^  s.  24,  (concealment  of  deeds,)  411. 

s.  2G,  (power  of  attorney,)  308. 
ss.  27,  28,  29,  (administration,)  341,  342,  357. 
s.  30,  (trustees  may  apply  for  opinion  of  judge,)  295. 
s.  31,  (trustees,)  294. 
s.  32,  (investments,)  283. 
c.  36,  (stamps  on  probates,)  336. 
c.  61,  (divorce  amendment,)  389,  391. 
c.  57,  (imprisonment  for  debt,)  97. 
25  Vict.  c.  5,  (Indian  government  notes,)  337. 
c.  15,  (probate,)  37,  78,  87,  337. 
c.  28,  (stockjobbing,)  92,  203. 

23  &  24  Vict.  c.  38,  ss.  3,  4,  (registered  judgment,)  102. 

s.  8,  (concealment  of  deeds,)  411. 
s.  9,  (trustees  may  apply  for  opinioD  of  judge,)  295. 
s.  10,  (investments,)  284. 
s.  11,  (investments,)  ib. 
s.  12,  (investments,)  ib. 
s.  13,  (personal  estate  of  intestate,)  401. 
s.  14,  (accounts  in  chancery,)  340,  357. 
c.  58,  (friendly  societies,)  230. 
c.  83,  (infants'  settlements,  Ireland,)  371. 
c.  106,  (railways,)  210. 
c.  Ill,  (stamps,)  37,  84,  87,  177,  204. 

c.  126,  s.  13,  (Common  Law  Procedure  Act,  1860;  bill  of  sale,)  53. 
ss.  28-31,  (garnishee,)  119. 
s.  32,  (costs,)  64. 
c.  127,  s.  28,  (solicitor's  lien,)  32. 
c.  144,  (divorce,)  391. 

c.  145,  s.  25,  (investment  of  trust  moneys,)  285. 
s.  26,  (maintenance,)  280. 
s.  27,  (appointment  of  trustees,)  289. 
s.  29,  (receipt  of  trustees,)  ib. 
s.  30,  (executors,)  340,  357. 
s.  34,  (date  of  operation,)  280,  285. 

24  Vict.  c.  3,  ^transfer  of  stock,)  202,  406. 

c.  5,  (exchequer  bills,)  282. 
c.  10,  (Court  of  Admiralty,)  30,  61,  96. 
c.  14,  (post-office  savings  banks,)  232. 
24  &  25  Vict.  c.  73,  (designs  for  articles  of  manufacture,)  25G. 

c   91,  s.  30,  (stamps  on  appointment  of  new  trustees,)  291. 

s.  34,  (fixtures,  bills  of  sale,)  50. 
c.  92,  s.  3,  (probate,  voluntary  debts,)  339. 
c.  114,  (domicile,)  325,  326. 
c.  121,  (domicile,)  326,  327. 
c.  134,  (Bankruptcy  Act.  18G1,)  132.  166.  172. 

s.  2,  (reduction  of  London  commissioners,)  140. 

s.  3,  (jurisdiction  of  county  courts,)  ib. 

s.  4,  (county  courts,)  ib. 

ss.  19-27,  (abolition  of  insolvent  court,)  172. 

s.  69,  (all  debtors  subject  to  bankrupt  laws,)  ib. 

s.  71,  (acts  of  bankruptcy,)  135. 

s.  72,  (declaration  of  insolvency,)  136. 

s.  73,  (execution,)  50,  51,  112,  136. 

s.  74,  (sale  of  goods  by  auction,)  51. 

s.  75,  (insolvency  in  colonies.)  i:^*!. 

s.  76,  (judgment  debtor  summons,)  ib. 


462  INDEX. 

Statutes  cited. 

§4  &  25  Vict.  c.  134,  s.  77,  (decrees  and  orders,)  iS?. 

s.  83,  (summons,  adjudication  of  bankruptcy,)  ib. 

ss.  98-107,  (pauper  and  lunatic  prisoners,)  172. 

8.  108,  (official  assignees,)  53. 

s.  117,  (assignees,)  53,  141. 

s.  128,  (debts  under  lOl.,)  141, 

8.  134,  (half-pay,  &c.,)  54,  172. 

8.  135,  (sequestration  of  benefice,)  172. 

8.  157,  (certificates,)  156. 

B.  159,  (after-ac(|uireil  property,)  159. 

s.  IGl,  (order  of  discharge,)  156. 

s.  163,  (discharge,)  309. 

s.  164,  (barred  debt,)  76. 

s.  177,  (joint  estates,)  314. 

8.  192,  (trust  deeds  for  creditors,)  125,  126. 

s.  194,  (registration,)  122. 

s.  195,  (stamps,)  124,  126. 

s.  294,  (registration,)  124. 
25  Vict.  c.  22,  (inland  revenue,)  337. 
25  &  26  Vict.  c.  63,  (Merchant  Shipping  Act  Amendment  Act,  1862,)  30,  55. 

s.  3,  (equities  against  owners  and  mortgagees  of  ships,)  57. 

ss.  66-78,  (lien  for  freight,)  30,  62. 
c.  68,  (copyright  works  of  art,)  253. 
c.  81,  (divorce,)  391. 
c.  86,  ss.  12-14,  (lunatics  or  idiots,)  205. 
c.  87,  (industrial  and  provident  societies,)  231. 
c.  88,  (fraudulent  marking  of  merchandise,)  257,  400. 
c.  89,  (Companies  Act,  1862,)  209,  215,  217,  218,  219,  220. 

s.  4,  (partners,)  220. 

s.  6,  memorandum  of  association,)  219. 

8.  7,  (liability  may  be  limited,)  220. 

8.  8,  (shares,)  221. 

s.  9,  (guarantee,)  ib. 

s.  10,  (memorandum  of  unlimited  company,)  222. 

s.  11,  (effect  of  memorandum,)  ib. 

s.  12,  (powers  to  alter  memorandum,)  ib. 

s.  13,  (change  of  name,)  ib. 

ss.  14,  15,  (articles  of  association,)   223. 

s.  16,  (stamp  on  articles,)  ib. 

s.  17,  (registration  of  articles,)  ib. 

s.  18,  (certificate  of  incorporation,)  ib. 

s.  21,  (license  to  hold  land,)  224. 

8.  22,  (shares  personal  estate,)  ib. 

8.  25,  (register,)  ib. 
I  8.  26,  (annual  list  of  members,)  ib.  ' 

s.  30,  (register  of  members,)  ib. 

8.  31,  (certificate  of  shares,)  ib. 

8.  37,  (register,  evidence,)  ib. 

8.  38,  (liability  of  contributories,)  228. 

s.  39,  (registered  office,)  224. 

8.  41,  (name  of  limited  company,)  225. 

8.  43,  (mortgages  and  charges,)  ib. 

B.  44,  (annual  statement,)  ib. 

s.  47,  (bills  and  notes.)  320. 

8.  50,  (special  resolution,)  226. 

8.  51,  (special  resolution,)  j'i. 

8.  53,  (registry  of  special  resolution,)  ib. 

s.  54,  (copies  of  ditto,)  ib. 

3.  74,  (contributories,)  228. 

ss.  79-128,  (winding  up  by  the  court,)  228. 

8.  81,  (court,)  ib. 


INDEX.  463 

Statutes  cited. 

25  &  26  Vict,  c.  89,  ss.  92-07,  133-144,  (officiiil  liiiuidators,)  i6. 

ss.  129-146,  (voluntary  ■winding  uji,)  ib. 
ss.  147-152,  (supervision  of  court,)  i/j. 

26  Vict.  c.  14,  (post-office  savings  banks,)  232. 

c.  28,  (stock  certificates,)  203. 

26  &  27  Vict.  c.  41,  (lien  of  innkeepers,)  29. 

c.  56,  (loan  societies,)  231. 

c.  57,  (regimental  debts  act,)  337. 

c.  87,  (savings  bank  acts  amendment,)  232. 

c.  92,  (Clauses  Consolidation  Act,  railways,)  210. 

c.  93,  (ditto  waterworks,)  ib. 

c.  105,  (bills  and  notes,)  85. 

c.  118,  (Companies  Clauses  Consolidation  Act,)  211. 

27  Vict.-c.  18,  (stamps,)  300. 

c.  19,  (companies'  seals,)  229. 

27  &  28  Vict.  c.  32,  (banks,)  214. 

C.  36,  (army  prize,)  337. 

c.  44,  (property  of  wife  deserted,)  390. 

c.  56,  (stamps,)  87,  177,  336. 

c.  67,  (game,  trespass,)  21. 

c.  95,  (death  by  injury,)  65,  66. 

c.  112,  (register  of  writs  of  execution,)  101,  155,  310. 

c.  114,  (improvement  of  land,)  282. 

c.  120,  (railways,)  210. 

c.  121,  (railways,)  ib. 

28  Vict.  c.  40,  (trustees,  County  Palatine  of  Lancaster,)  289. 

28  &  29  Vict.  c.  72,  (seamen's  wills,)  324. 

c.  78,  (Mortgage  Debenture  Act,)  229. 
c.  86,  (partnership,)  316,  317,  318. 
c.  96,  (stamps,)  61,  177,  197. 
c.  99,  (county  courts,)  6,  97. 

29  Vict.  c.  28,  (laboring  classes  dwellings,)  233. 

29  &  30  Vict.  c.  14,  (small  debts,)  97. 

c.  32,  (alimony,)  390. 

c.  96,  (registration  of  bills  of  sale,)  49,  50. 

30  Yict.  c.  23,  s.  3  et  scq.,  (stamps  on  sea  policies,  repeal  of  acts,)  181. 

c.  28,  (laboring  classes  dwellings,)  233. 
c.  29,  (sale  and  purchase  of  shares,)  230. 
30  &  31  Vict.  c.  90,  s.  23,  (duty  on  transfer  of  bonds,)  109. 

c.  117,  (industrial  and  provident  societies,)  230,  231. 

s.  3,  (application  of  provisions  of  Friendly  Societies  Act.)  231. 
c.  127,  (railway  companies,)  210. 
c.  131,  (Companies  Act,  1862,  Amendment,)  218,  219. 

ss.  4-8,  (unlimited  liability  of  directors,)  220. 

ss.  9-20,  (reduction  of  capital  and  shares.)  222. 

s.  21,  (sub-division  of  shares,)  223. 

a.  23,  (association  not  for  profit,)  225. 

ss.  27-33,  (share  warrants  to  bearer,)  227. 

s.  28,  (effect  of  share  warrant,)  ib. 

s.  37,  (contracts,)  227,  320. 

s.  40,  (winding  up  petition,)  228. 

ss.  41,  42,  (winding  up,)  ib. 
C.  132,  (East  India  stock,)  285. 
c.  142,  (County  Courts  Act  Amcmlment,)  6,  97. 

s.  24,  (payment  into  court  by  trustees,)  295 

s.  25,  (extension  of  powers,)  295. 
c,  144,  (Policies  of  Assurance  Act,  1867,)  6,  IjK. 

ss.  1-4,  (assignment  of  life  policies,)  17^ 

s.  3,  (notice  of  assignment,)  410. 

s.  6,  (acknowledgment  of  notice,)  179. 
31  &  32  Vict.  c.  54,  (judgments  exteusiou,)  104,  178. 


464  INDEX. 

Statctes  cited.  . 

31  &  32  Vict.  c.  71,  (county  courts  atlmiralty  jurisdiction,)  97. 
c.  86,  (assignees  of  nrmrine  policies,)  G,  118. 

31  &  32  Vict.  c.  89,  s.  1,  (assignees  of  marine  policies,)  181. 

c.  90,  s.  1,  (public  departments,  payments)  338. 

s.  2,  (sums  under  100/.,  powers  of  war  department,)  ib. 
c.  104,  (bankruptcy  act  amendment,)  126. 

8.  3,  (assent  to  composition  deeds,)  128. 
c.  HI,  (expiring  laws  continuance,)  85. 
c.  124,  8.  7,  (mortgage  debt  on  leaseholds,  probate,)  339. 

8.   11,  (exemption  of  building  societies  from   stamp   duties 
restricted,)  233. 
c.  129,  (colonial  shipping,)  55. 
c.  130,  (artizans'  and  laborers'  dwellings,)  233. 

32  Vict.  c.  14,  s.  12,  (duty  on  fire  insurance  repeal,)  181. 

32  &  33  Vict.  c.  46,  (specialty  and  simple  coniract  debts,)  97,  106,  113. 
c.  48,  (Companies  Clauses  Act  Amendment,)  210,  211. 
c.  51,  (County  Court  Admiralty  Jurisdiction  Act  Amendment,)  97. 
c.  59,  (savings  banks  and  post-office  savings  banks,)  232. 
c.  61,  (trades  unions  funds  protection,)  230. 
c.  62,  (imprisonment  for  debt,)  103,  135,  157,  173. 
ss.  4,  5,  6,  11,  et  seg.  (exceptions,)  104. 

s.  24,  (execution  of  warrants  of  attorney,)  100. 
*  s.  25,  (informal  execution  of  warrant,)  ib. 

s.  26,  (filing  warrant  of  attorney),  99,  101. 

ss.  27,  28,  (filing  judge's  order,)  101. 
c.  71,  (Bankruptcy  Act,  1869,)  132,  173,  255. 

8.  4,  (interpretation,)  298. 

s.  6  (petition  for  adjudication,)  135,  138. 
par.  1,  (act  of  bankruptcy,)  123. 
par.  5,  (act  of  bankruptcy,)  113. 

s.  8,  (proceedings  on  petition,)  139. 

s.  10,  (advertisement,)  141. 

s.  11,  (commencement  of  bankruptcy,)  151. 

s.  14,  (appointment  of  trustee,)  141. 

8.  15,  (property  of  bankrupt,)  54,  159,  270,  408.     , 

s.  17,  (devolution  of  property  on  trustee,)  53. 

s.  25,  (power  of  trustee,)  144, 

s.  26,  (management  of  property,)  ib. 

ss.  27-29,  (compromise,  composition,)  145. 

8.  31,  (debts,)  148. 

8.  32,  (preferential  debts,)  155. 

ss.  34-36,  (distraint  for  rent,  &c.,)  148,  155. 

ss.  37-39,  (distinct  contracts,  &c.,)  149. 

s.  40,  (secured  creditor,)  150. 

8.  45,  (surplus,)  155. 

s.  48,  (discharge,)  157. 

8.  49,  (effect  of  order  of  discharge,)  155,  158. 

s.  50,  (joint  debtors,)  158,  309. 

8.  54,  (statutes  of  undischarged  bankrupt,)  160. 

8.  59,  (court,)  140. 

s.  60,  (London  bankruptcy  district,)  ib. 

s.  71,  (appeal,)  154. 

s.  79,  (change  of  jurisdiction,)  140. 

s.  80,  (proceedings,)  131. 

par.  1,  (affidavit  of  petitioner,)  139. 

s.  83,  (trustees,)  53. 

par.  7,  (official  name  of  trustee,)  120. 

8.  87,  (proceeds  of  sale  and  seizure,)  146 

s.  88,  (sequestration  of  ecclesiastical  benefice,)  173. 

s.  89,  (pay  of  officers,)  174. 

8.  90,  (salary,)  ib. 


INDEX.  405 

Statutes  cited. 

32  &  33  Vict,  c.  71,  ss.  91,  92,  (voluntary  settlements  and  fmiululent  preferences.) 

154. 
ss.  94,  95,  (protection  of  certain  transactions,)  152,  153. 
s.  100,  (petition  against  one  partner,)  313. 
s.  103,  (joint  creditor,)  313. 
s.  104,  (joint  and  separate  dividends,)  314. 
s.  105,  (suits  by  trustee  and  bankrupt's  partner,)  300. 
s.  107,  (evidence,)  IGO. 
s.  Ill,  (power  of  assignee  to  sue,)  120. 
s.  120,  (privilege  of  parliament,)  160. 
s.  121,  (vacating  seat,)  IGl. 
s.  125,  (liquidation  by  arrangement,)  165. 
8.  126,  (composition  witli  creditors,)  128. 
s.  128,  (commissioners,)  140. 
s.  130,  (countrj'  district  courts,)  ib. 

sched.  1,  (description  of  traders,)  133. 
c.  83,  (insolvent  debtors  and  banl<ruptcy  repeal,)  100,  113,  120,  123, 

124,  125,  126,  132,  172,  173,  270. 
c.  104,  (dividends  on  public  stocks,)  200. 
c.  114,  (railways  abandonment,)  210. 
Statutes  merchant  and  staple,  105. 
Stock  in  trade,  assignment  of,  34. 

in  the  funds,  6,  199-208.  # 

is  personal  estate,  201. 
jobbing,  92  203,  230. 
transfer  of,  202. 
contract  for  sale  of,  204. 
distringas  on,  205. 
charge  of  judgment  on,  206. 
transmission  of,  by  will,  207. 
unclaimed  dividends  on,  406. 
notice  to  trustee  on  assignment  of,  407. 
Stolen  goods,  sale  of,  396. 
Stop  order,  409. 
Stoppage  in  transitu,  44. 
Submission  to  arbitration,  183,  186. 
Succession  Duty  Act,  1853.     300,  303,  343. 
Superior  courts  of  record,  96. 
Sureties,  114,  115. 

discharge  of,  116. 
Survivorship  amongst  joint  owners,  302,  305. 

none  in  equity  of  joint  securities,  305,  306,  307. 

none  amongst  owners  in  common,  308. 

amongst  joint  debtors,  309. 

as  to  joint  and  several  debtors,  311,  312. 

of  office  of  executor,  330. 


Tail,  estate,  none  in  personal  property,  265. 

Taxes  due  from  bankrupt,  155. 

Tenant  without  impeachment  for  waste,  19. 

for  years  or  for  life,  18. 

joint,  351. 

in  common,  306,  307. 

bequest  to,  351. 
Tenterden,  Lord,  his  act.— See  statute  9  Geo.  IV.  c.  14. 
Tkstamemtary  alienation,  growth  of  right  of,  321. 
See  AViLL. 


Timber,  16,  18. 

trees,  what  are,  18. 


466  INDEX. 

Title,  395. 

to  money  and  negotiable  securities,  395. 

to  chattels  personal,  39G. 

to  stolen  goods,  ib. 

to  horses  stolen,  397. 

under  factors  and  agents,  398. 

warranty  of,  399. 

under  statutes  of  limitations,  400-405. 

to  unclaimed  dividends,  406. 

to  choses  in  action  hy  notice,  407,  408. 

through  deeds,  wills,  &c.,  410. 

abstract  of,  ib. 

covenants  for,  ib. 

to  shares,  ib. 

comparison  of,  to  real  and  personal  estate,  411. 

to  good  bona  fide  acquired,  52,  395. 

deeds,  9,  11. 

solictor's  lien  on,  30. 
T0.MBSTONE,  13. 
Tort,  action  for,  05. 
Trade,  contracts  in  restraint  of,  91. 
marks,  25G,  257. 
bankruptcy  of  partners  in,  313. 
liability  of  executors  carrying  on,  315. 
customs  of,  399. 
Trader,  who  is,  within  the  bankrupt  laws,  132. 
Transfer  of  stock,  202. 
Trespass  in  pursuit  of  game,  21. 

on  the  case,  24. 
Trover  and  conversion,  23,  46,  49. 

recovery  in,  46. 
Trust,  though  voluntary,  enforced  in  equity,  36. 
settlements  by  means  of,  262. 
funds,  act  for  better  securing,  294. 
for  payment  of  creditors,  when  revocable,  299. 
for  wife's  separate  use,  384,  385. 
gift  for  "  sole  use,"  384. 
form  of,  of  stock,  420. 
none  entered  on  ship's  register,  56. 
Trustee  Act,  1850.     291. 
Trustee  in  bankruptcy,  141. 

appointment  of,   142. 
security  to  be  given,  ib. 

power  to  deal  with  property,  142,  144,  145,  148. 
if  a  solicitor,  may  be  paid  for  services,  145. 
under  a  liquidation,  163. 
Trustees,  former  liability  of,  not  investing  in  consols,  201. 

transfer  of  stock,  refusal  of  Bank  to  recognise,  202. 

infant,  205,  291. 

power  to  appoint  new,  289,  290. 

costs  of,  292. 

responsibilities  of,  ib. 

indemnity  and  reimbursement  of,  294. 

act  for  relif  of,  ib. 

county  courts,  jurisdiction  of,  295. 

punishment  for  fraudulent,  ib. 

power  to  apply  for  opinion  of  judge,  ib. 

of  personal  estate  made  joint  owners,  303. 

notice  to,  on  assignment  of  chose  in  action,  408. 

inquiry  of  as  to  prior  assignments  of  choses  in  action  ib. 

form  of  usual  clauses  in  settlement  as  to,  429. 


INDEX.  467 


Umpire,  194, 195. 

Uncertificated  bankrupt,  158,  159. 
Unclaimed  dividends,  406. 
Unlawful  contracts,  73,  89,  90. 
Use,  conveyance  by  way  of,  11. 
Usurious  contracts,  93. 

V. 

Vendor's  lien,  43. 
Vested  interests,  262. 

the  courts  lean  to,  211. 
giving,  to  children  by  settlement,  278. 
Vesting  of  shares  of  joint  owners,  303. 
Voluntary  trust  enforced,  36. 

bonds  and  covenants,  110. 
preference  in  bankruptcy,  168. 

settlement,  void  as  against  creditors,  153,  154,  297. 
binding  on  settlor,  298. 
of  personal  estate  not  void  as  against  subsequent  purchasers,  300. 

W.    . 

Wagers  void,  93. 

Wages  to  servants  of  bankrupt,  155. 
Wales,  custom  of,  321,  364. 
Warrant  of  attorney,  98. 

to  secure  annuity,  100. 
execution  and  attestation  of,  ib. 
to  be  filed  within  twenty-one  days,  101. 
in  case  of  bankruptcy,  170. 
Warranty  on  sale  of  goods,  399. 
Waste,  -tenant  without  impeachment  of,  19. 
being  impleaded  of,  ib. 
by  incumbent,  68. 
Widow,  usually  preferred  in  grant  of  administration,  356. 
her  share  under  the  Statute  of  Distribution,  361. 
when  deprived  of  her  distributive  share  by  settlement,  371. 
Widowhood,  gift  to  a  woman  during,  369. 
Wife,  executrix,  329. 

covenant  to  settle  her  future  property,  295. 
no  duty  on  legacy  to,  342. 
a  feme  covert,  373. 

her  chattels  personal  belong  to  her  husband,  ib. 
her  paraphernalia,  374. 
her  legal  choses  in  action,  375. 
her  equitable  choses  in  action,  377. 
her  equity  to  a  settlement,  ib. 

disposition  of  her  reversionary  interests,  379,  380. 
her  husband's  liability  to  her  debts,  382,  387. 
her  will  of  her  personal  estate,  383. 
trusts  for  her  separate  use,  384,  385. 
restraint  on  her  anticipation,  385. 
powers  may  be  exercised  by,  270. 
powers  of  appointment  given  to,  386. 
separation  of,  387. 
settlement  on,  391. 

protection  when  deserted  by  her  husband,  389. 
her  alimony,  390. 
a  feme  sole,  ib. 

remarks  on  the  law  of  husband  and  wife,  392. 
acknowledgment  by,  on  conveyance  of  real  estate,  393. 
See  Married  Woman. 
36 


468  INDEX. 

Will,  321. 

attestation  of,  323. 

revocation  of,  325. 

domicile,  325,  32G. 

executor  of,  328. 

probate  of,  332-339. 

ecclesiastical  jurisdiction  over,  333,  354. 

registration  of,  in  court  of  probate,  334. 

of  wife  by  husband's  authority,  383. 
WiNDixo-DP  Acts,  218,'228. 
Witnesses,  examination  of,  by  arbitrators,  187. 

to  a  will,  323. 
WuiT  of  mandamus,  63. 

of  injunction,  ib. 

of  fieri  facias,  51. 

of  levari  facias,  52. 

of  elegit,  ib. 

of  capias  ad  satisfaciendum,  102. 
Writing,  what  contracts  to  be  in,  38,  40,  42,  76,  77,  78,  79,  80,  82,  84 


Year,  agreement  not  to  be  performed  within  a,  43,  80. 

of  executor,  340. 

of  administrator,  357. 
York,  custom  of  province  of,  321,  333,  364. 
Younger  children,  273. 


1 


SOUTHERN  REGIONAL  I IBRARY  rAClUTY 


AA    000  821  971     9 


